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Landfill zoning
American Jurisprudence states that it is common to use expert witness testimony at zoning board of appeals hearings, and courts have held that an administrative agency such as a zoning board of appeals can’t disregard competent expert testimony and rely on its own knowledge on issues which the board members have no expertise.  However, representations of lay witnesses don’t necessarily have to be accepted.

Judge Robert Edward Simpson Jr., of the Pennsylvania Commonwealth Court recently heard an appeal in a complex land use case, where a landfill company asked whether the Court of Common Pleas erred in denying its appeal and affirming the decision of the local township zoning hearing board (ZHB) that denied its many requests for zoning approval for a proposed landfill. The appellant argued that where doubt exists as to whether the ordinance’s definition of “structure” could be read to encompass “landfills,” the trial court erred by failing to acknowledge this ambiguity and by failing to interpret the zoning ordinance in favor of the landowner as the Municipalities Planning Code required.

The landfill company filed an application with the ZHB, seeking zoning approval for its proposed landfill. The proposed landfill site would occupy about 99 acres with half in the local township and the other in an adjacent township.

Numerous hearings ensued before the ZHB, including two joint hearings with the adjacent township’s Board of Supervisors. The ZHB heard 55 hours of testimony. Witnesses for the appellant including a civil engineer and a civil and environmental engineer appeared. Several area residents testified in opposition to the proposed landfill, along with a land use expert and a professional engineer.

Judge Simpson stated that he could not substitute his interpretation of the evidence for that of the ZHB. It was the function of a ZHB, he explained, to weigh the evidence before it. The ZHB is the sole judge of the credibility of witnesses and the weight given to their testimony. Assuming the record contained substantial evidence, Judge Simpson said that the Commonwealth Court was bound by the ZHB’s findings that resulted from “resolutions of credibility and conflicting testimony rather than a capricious disregard of evidence.”

Quoting his earlier precedent, Judge Simpson wrote that a zoning board was “free to reject even uncontradicted testimony it finds lacking in credibility, including testimony offered by an expert witness.” A zoning board does not abuse its discretion, Judge Simpson held, by choosing to believe the opinion of one expert over that offered by another.

The decision of the Court of Common Pleas of Mercer County was affirmed.

Tri-County Landfill, Inc. v. Pine Tp. Zoning Hearing Bd., 83 A.3d 488 (Pa.Cmwlth. January 09, 2014).

By: Kurt Mattson, J.D., LLM

Kurt R. Mattson is the Director of Library Services and Continuing Education at Lionel Sawyer & Collins located in Reno and Las Vegas, Nevada