        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



East Coast Propane, LLC,                :
                                        :
                         Appellant      :
                                        :
            v.                          :   No. 185 C.D. 2015
                                        :
Falls Township Zoning Hearing           :   Argued: October 5, 2015
Board and Falls Township                :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                            FILED: November 10, 2015

      East Coast Propane, LLC (ECP) appeals from the Order of the Court of
Common Pleas of Bucks County (trial court) which denied ECP’s land use appeal
from the Decision of the Falls Township (Township) Zoning Hearing Board
(ZHB), thus affirming the ZHB. The ZHB: (1) denied ECP’s appeal from the
Township Zoning Officer’s determination that the proposed use of its Property as a
propane storage business is not permitted in the HI-A Heavy Industrial A District
(HI-A District); (2) denied ECP’s request for a use variance from Section 209-
32.3.B of the Township Zoning Ordinance (Ordinance); and (3) denied ECP’s
challenge to the substantive validity of the Ordinance. On appeal, ECP argues that
the ZHB erroneously interpreted the Ordinance, that its proposed use is permitted
by right in the HI-A District, and that the ZHB erred by not finding that the
Ordinance is substantively invalid. Discerning no error, we affirm.


      We begin with a review of the applicable provisions of the Ordinance.
Section 209-32.3 of the Ordinance governs the HI-A District. The purpose of the
HI-A District is to provide for “product distribution and warehousing . . . fuel sales
at locations both advantageous to the industrial user and safely and aesthetically
buffered from residential and other incompatible uses.” (Section 209-32.3.A of the
Ordinance, R.R. at 453a.) Principal and permitted uses include “[p]roduct
distribution and warehousing” and “[p]lumbing, heating and roofing and building
material yards and fuel sales.” (Section 209-32.3.B.(3), (7) of the Ordinance; R.R.
at 453a.) Relevant prohibited uses include:

      (b) The manufacture, handling, storage or transferring of basic or
      semi[-]finished chemicals, such as cellulose products, resins, dye
      stuffs, glue, vegetable, animal or mineral fats or oils, explosives,
      combustible gases, soaps and detergents, fertilizers, asphalt and tar
      products.
                                      ....

      (e) Except as provided herein, the storage of fuels or explosive
      materials in bulk.

(Section 209-32.3.D.(1)(b), (e) of the Ordinance (emphasis added), R.R. at 453a.)


      ECP entered into an agreement of sale to purchase the subject Property,
which is located in the HI-A District. The Property consists of two parcels and the
area is approximately 4.44 acres. Located on the Property are two existing single-
family homes, serviced by two separate driveways, that are currently in use as
residences. A vacant gravel lot, serviced by a third driveway, is also located on the

                                          2
Property. This vacant lot has an access drive to a vacant office and garage. A
guarded perimeter fence secures the central part of the Property. Surrounding the
Property to the west, north and east are mostly industrial uses, including a
compressed natural gas station located to the west. To the south, the Property is
bordered by a residential community consisting of manufactured homes.


       ECP filed a letter of intent with the Township Zoning Officer to use the
Property for “propane fuel sales, distribution, storage of products incident to sales
and distribution and the sales and repairs of propane powered vehicles.” (ZHB
Decision, Findings of Fact (FOF) ¶ 80.) ECP proposed “to situate four (4) above-
ground liquid propane storage tanks, each capable of holding 30,000 gallons of
liquid propane, on the Property.” (FOF ¶ 21.) ECP planned to use the existing
vacant office and garage located on the Property for business purposes and to
service company vehicles.      In addition, ECP intended to permit the current
residents of the two single-family homes to remain on the Property.


       The Zoning Officer denied ECP’s proposed use because the Ordinance
prohibited the “storing, handling and transferring of combustible gases.” (FOF ¶
80.)   ECP filed an application with the ZHB appealing the denial and also
requesting a variance from Section 209-32.3.D.(1)(b) of the Ordinance to use the
Property to operate a propane storage business. ECP later amended its application
to include a substantive challenge to the validity of Section 209-32.3.D.(1)(b).
Hearings ensued before the ZHB.




                                         3
      ECP presented the testimony of its President and several witnesses qualified
as experts in the areas of: (1) civil engineering; (2) traffic engineering; (3) land
planning and interpretation of zoning ordinances; and (4) design, construction, and
operation of propane storage facilities and the handling and composition of
propane. The Township presented the testimony of an expert in the field of land
planning and zoning, its Zoning Officer, its Engineer, and its Fire Marshal. Three
residents testified in opposition to ECP’s application.


      The ZHB determined that, through its witnesses’ testimony, ECP “withdrew
all proposed uses on the Property except a propane storage business.” (ZHB
Decision at 15.) The ZHB determined further that ECP’s witnesses’ testimony
revealed that

      the operation of the proposed use on the Property would involve large
      tanker trucks periodically coming onto the Property, filling four (4)
      30,000 gallon propane storage tanks with liquid propane, and smaller
      trucks (“bobtails”) being filled with propane from the tanks and
      leaving the site to deliver the propane to residential, commercial or
      industrial customers who use propane for heating purposes.

(ZHB Decision at 15.) Based on all of the evidence presented and its interpretation
of Section 209-32.3 of the Ordinance, the ZHB concluded that the proposed use of
the Property as a propane storage business was not permitted by the Ordinance.


      The ZHB first determined that the proposed use was prohibited by Section
209-32.3.D.(1)(b) because propane is a “combustible gas.” The ZHB pointed out
that “the natural state of propane is in a vapor (gas) form” and, “[i]n order to
remain in liquid form, the testimony revealed the propane must remain under high

                                          4
pressure.” (ZHB Decision at 16.) The ZHB found that propane is a “combustible
gas” based on ECP’s witnesses’ testimony “that if propane leaks or spills from the
trucks or tanks on the Property, and mixes with the proper amount of oxygen,” it
becomes a gas which “will combust if it is exposed to an ignition source.” (ZHB
Decision at 16.) “[T]he ZHB concluded that while the intent is to handle, store and
transfer propane in liquid form, it could easily revert to its natural state as a
combustible gas due to human error or equipment malfunction.” (ZHB Decision at
16.) In addition, the ZHB, relying on testimony of the Township’s planning
expert, determined that “many of the chemicals listed in Section 209-32.3.D.(1)(b)
after the phrase, ‘basic or semi[-]finished chemicals such as . . .’ are themselves
finished chemicals, such as, fertilizer, asphalt, soap and detergent that, like
propane, require no additional process to become finished,” and that this section
would, therefore, apply to propane. (ZHB Decision at 16.)


      Second, the ZHB determined that the proposed use was prohibited by
Section 209-32.3.D.(1)(e) of the Ordinance. The ZHB found that “the phrase,
‘Except as provided herein’, which precedes the Ordinance language prohibiting
the storage of fuels in bulk” in Section 209-32.3.D.(1)(e) does not allow for such
storage because there “was no specific testimony demonstrating that there are one
or more exceptions to the prohibition against storing fuels in bulk.”        (ZHB
Decision at 17.)


      Third, the ZHB found that the proposed use was not permitted as “product
distribution and warehousing” under Section 209-32.3.B.(3) of the Ordinance. The
ZHB determined that, in order “[f]or distribution to occur on the Property,


                                        5
customers would be required to be able to come onto the Property to acquire
product, either retail or wholesale, which is not proposed.” (ZHB Decision at 17.)
Instead, distribution occurs at the homes or businesses of ECP’s customers when
the propane is transferred from the delivery trucks to the smaller propane tanks for
use as heating fuel on the customers’ properties. (ZHB Decision at 17.) The ZHB
accepted the testimony from the Township’s witnesses that, “in order to have
warehousing, you must have a ‘warehouse’ building in which product may be
stored.” (ZHB Decision at 17.) The ZHB similarly found that the proposed use
does not qualify as “fuel sales” under Section 209-32.3.B.(7) “because there is no
sales activity involving the transfer of money and product to customers occurring
on the Property.” (ZHB Decision at 18.)


      Fourth, the ZHB determined that ECP did not prove that it was entitled to a
use variance to permit the proposed use on the Property. The ZHB found that
ECP’s evidence did not prove that there are any unique conditions associated with
the Property and that the evidence “showed that the proposed use . . . would be
contrary to the public health, safety and welfare.” (ZHB Decision at 20.) The
ZHB determined that the proposed use, which involves the handling, storage and
transfer of propane, presented a danger that would adversely affect the nearby
residential development in which there are homes located within 200 feet of the
proposed storage tanks.


      Finally, the ZHB determined that ECP did not present any significant
testimony that supported its substantive validity challenge to Section 209-
32.3.D.(1)(b), which was based on the faulty premise that the proposed use is


                                          6
permitted either as “product distribution and warehousing” or “fuel sales.” (ZHB
Decision at 21.) Moreover, even if “Section 209-32.3.D.(1)(b) of the Ordinance
[would] subsequently [be] declared substantively invalid,” the ZHB found that “the
proposed use on the Property remains prohibited by Section 209-32.3.D.(1)(e), the
validity of which was not challenged by [ECP], and which applies directly to the
proposed use as the ‘storage of fuels in bulk’.” (ZHB Decision at 23.) The ZHB
stated further that “[t]here is no similar prohibition against the storage of fuels in
bulk in either the HI-Heavy Industrial District or the MPM-Materials Processing
and Manufacturing District, thus the use is not excluded from the Township.”
(ZHB Decision at 23.)


      Accordingly, the ZHB concluded, inter alia, that: (1) the proposed use “is
not permitted by the Ordinance”; (2) the use was prohibited by Sections 209-
32.3.D.(1)(b) and 209-32.3.D.(1)(e) because the use “involves the handling,
storage and transferring of combustible gases” and “the storage of fuels in bulk”;
(3) ECP did not meet its burden of proving that it was entitled to a variance; (4) the
proposed use “would adversely alter the essential character of the [surrounding]
neighborhood . . . and would be detrimental to the public welfare”; (5) there was
no conflict or “ambiguity in the provisions of Section 209-32.3 of the Ordinance”;
(6) “[t]he Ordinance does not unconstitutionally prohibit the use proposed on the
Property in the Township”; and (7) “Section 209-32.3.D.(1)(b) does not
unreasonably restrict the development of [P]roperty within the HI-A [D]istrict.”
(ZHB Decision, Conclusions of Law ¶¶ 4-11.)




                                          7
       ECP appealed the ZHB’s Decision to the trial court, which affirmed. In an
opinion accompanying its Order, the trial court determined that the ZHB did not
abuse its discretion in denying ECP’s appeal because Section 209-32.3.D.(1)(e)
specifically and unambiguously prohibits the storage of fuels in bulk. The trial
court opined further that “Section 209-32.3.B(3) which includes ‘product
distribution and warehousing’ as a permitted use and Section 209-32.3.B(7) [which
includes] ‘fuel sales’ as a permitted use does not trump the specific language found
at subsection (1)(e) prohibiting storage of fuels in bulk.” (Trial Ct. Op. at 9.)
Finally, the trial court upheld the ZHB’s denial of ECP’s validity challenge and its
request for a variance. This appeal followed.1

       1
         As ordered by the trial court, ECP filed, pursuant to Rule 1925 of the Pennsylvania
Rules of Appellate Procedure, Pa. R.A.P. 1925, a timely Statement of Errors Complained of on
Appeal (1925(b) Statement). Therein, ECP briefly set forth the facts, the issues before the ZHB,
the determination of the trial court and the statement that, on appeal, it “plans to make the
following arguments (which are set forth in further detail in the Notice of Land Use Appeal and
incorporated herein by reference)”:

       The Court of Common Pleas committed an error of law and an abuse of discretion
       in (a) upholding the ZHB Decision; (b) failing to find that the proposed use is
       permitted by right on the Property; (c) failing to grant a variance to allow the
       proposed use on the Property; and (d) failing to determine that the provisions of
       Section 209-32.3.D(1) of the Zoning Ordinance are substantively invalid.

(1925(b) Statement at 2, R.R. at 458a.) In its opinion filed pursuant to Rule 1925(a) (1925(a)
Op.), the trial court states that ECP has waived all issues on appeal because ECP has not
provided the required “clear statement of the grounds for the appeal with a sufficient degree of
particularity identifying the specific issues that [ECP] intends to address in the appeal.” (Trial
Ct. 1925(a) Op. at 3.) The trial court opines that ECP’s “vague and undefined assertion of error
is tantamount to a complete failure to identify the grounds for the appeal . . . and . . . should
result in a waiver of all issues that could have been raised.” (Trial Ct. 1925(a) Op. at 3.) At the
end of its 1925(a) opinion, the trial court restates its reasoning on the merits as set forth in its
initial opinion accompanying its Order denying ECP’s appeal. Neither ECP nor the Township
address, in the briefs filed with this Court, the trial court’s conclusion that ECP has waived all
issues on appeal due to its insufficient/vague 1925(b) Statement. Instead, ECP sets forth five
                                                                                  (Continued…)
                                                 8
       On appeal,2 ECP raises several issues.3 First, ECP argues that its proposed
use is permitted by right under the Ordinance because it constitutes “product
distribution and warehousing” and/or “fuel sales.” ECP asserts that, when the
provisions of the Ordinance are construed broadly as required to give ECP the
benefit of the least restrictive use of its Property, the proposed use is permitted as
of right under the plain meaning of “product distribution and warehousing” and
“fuel sales.”    ECP contends that, because these terms are not defined in the
Ordinance, the ZHB erred by not construing these terms in accordance with their
common meanings and resolving any doubt in favor of ECP.


       As recently explained by this Court:

       “Zoning Boards . . . must not impose their concept of what the zoning
       ordinance should be, but rather their function is only to enforce the
       zoning ordinance in accordance with the applicable law.” Greth

specific issues in its Statement of Questions Involved, to which the Township has filed a
responsive brief. Because here, the trial court set forth its reasons for denying ECP’s appeal in
its initial opinion accompanying its Order and ECP filed a 1925(b) Statement asserting certain
errors by the trial court, the trial court did not need to guess which issues ECP was appealing;
thus, ECP has not waived all issues on appeal. See Hess v. Fox Rothschild, LLP, 925 A.2d 798,
803 (Pa. Super. 2007) (holding that a 1925(b) statement is the functional equivalent of no
statement if it is too broad or vague to permit the court to identify the issues the appellant is
raising on appeal); Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa. Super. 2001) (holding
that a 1925(b) statement does not provide enough specificity for meaningful review if the court
must guess what issues the appellant is appealing).

       2
          “When the trial court takes no additional evidence, our scope of review is limited to
determining whether the zoning hearing board committed an error of law or an abuse of
discretion.” Riverfront Development Group, LLC v. City of Harrisburg Zoning Hearing Board,
109 A.3d 358, 363 n.8 (Pa. Cmwlth. 2015).

       3
         ECP is not challenging the ZHB’s denial of ECP’s request for a use variance in its
appeal to this Court.

                                               9
      Development Group, Inc. v. Zoning Hearing Board of Lower
      Heidelberg Township, 918 A.2d 181, 187 (Pa. Cmwlth. 2007)
      (citation and quotations omitted). “[T]he Board is required to apply
      the terms of the Zoning Ordinance as written rather than deviating
      from those terms based on an unexpressed policy.” Id.

                                       ....

      The Board also has an obligation to construe the words of an
      ordinance as broadly as possible to give the landowner the benefit of
      the least restrictive use when interpreting its own Zoning Code.
      Albert v. Zoning Hearing Board of North Abington Township, . . .
      854 A.2d 401, 405 ([Pa.] 2004); Church of the Saviour v. Tredyffrin
      Township Zoning Hearing Board, . . . 568 A.2d 1336, 1338 ([Pa.
      Cmwlth.] 1989).

Riverfront Development Group, LLC v. City of Harrisburg Zoning Hearing Board,
109 A.3d 358, 366 (Pa. Cmwlth. 2015). With these principles in mind, we turn to
ECP’s argument that its proposed use is permitted as of right in the HI-A District
as “product distribution and warehousing” and/or “fuel sales.”


      ECP argues that its proposed use falls within the plain and ordinary
meanings of the terms “distribution” and “warehousing.” ECP contends that its
proposed use meets the definition of “distribution,” which is defined as “the
process by which commodities get to final consumers, including storing, selling,
shipping, and advertising.” (ECP’s Br. at 26 (quoting Webster’s New World
College Dictionary).) ECP asserts that the courts have defined distribution broadly
and there is no provision in the Ordinance that narrows “distribution” to that which
occurs on the Property. ECP argues further that its proposed use also meets the
definition of “warehousing,” which means “to place or store in a warehouse.”
(ECP’s Br. at 29 (quoting Webster’s New World College Dictionary).) Thus, ECP
contends, a “warehouse” is a place where goods are stored and that our courts have

                                        10
defined “warehousing” by the function that it serves as a place to store goods. See
Sears, Roebuck & Co. v. Power, 134 A.2d 659, 661-62 (Pa. 1957) (noting that the
property was used “for storage” and “serviced by a regular flow of heavy trucks”).
ECP argues that there is no provision in the Ordinance that requires that the term
“warehousing” be limited to only uses involving physical buildings. ECP contends
that the Superior Court has held that warehouses do not have to be conventional
buildings to constitute warehouses. See Commonwealth v. Atlantic Refining Co.,
74 Pa. Super. 393, 395-96 (1920) (holding that storage tanks used to hold oil that
was subsequently distributed to customers through the company’s delivery trucks
constituted “warehouses” for purposes of mercantile license taxes). Even if a
“warehouse” must be a structure, Section 107 of the Municipalities Planning Code4
defines “structure” as “any man-made object having an ascertainable stationary
location on or in land or water, whether or not affixed to the land.” 53 P.S. §
10107. ECP asserts that, under this definition, the proposed storage tanks are
structures.


      Upon review, we agree with ECP that its proposed use falls within the plain
meaning of the term “distribution.” By delivering propane to its customers, ECP is
essentially distributing its product.          However, we conclude further that the
proposed use does not fall within the plain meaning of the term “warehousing.” As
stated by ECP, the definition of “warehousing” is to place or store in a warehouse.
This requires a further definition of the term “warehouse.” A “warehouse” is
commonly defined as “1. A building, or part of a building used for the storage of
retail goods, furniture . . [; or] 2. A shop; now esp. a large wholesale or retail

      4
          Act of July 31, 1968, P.L. 805, as amended.

                                               11
store.”   Shorter Oxford English Dictionary Volume 2, 3581 (5th ed. 2002).
Although a propane storage tank may fall within the definition of a structure
because it is man-made, propane storage tanks clearly are not buildings.
Moreover, the cases relied upon by ECP for the conclusion that the storage tanks
are “warehouses” are readily distinguishable. Sears did not involve storage tanks,
but an actual building, and at issue was whether the landowner’s use of the
property as a warehouse met the ordinance’s restriction on warehouses that were
not on the same premises as a retail store or showroom, which it did not. Sears,
134 A.2d at 660-62. Atlantic Refining is not a zoning case and addressed whether
the manufacturer of petroleum was required to pay a mercantile tax or gross
receipts tax on the sale of petroleum directly from the tank wagons that was
withdrawn from storage tanks; the Superior Court analogized the tanks to
warehouses for tax purposes. Atlantic Refining, 74 Pa. Super. at 394-96.


      The wording of the Ordinance provides that “product distribution and
warehousing” are one permitted use; therefore, even though the proposed use can
be characterized as distribution of propane, the warehousing component is missing
from the proposed use. Accordingly, we conclude that the ZHB did not err by
finding that the proposed use was not permitted as “product distribution and
warehousing” in the HI-A District under Section 209-32.3.B.(3) of the Ordinance.


      ECP next argues that the proposed use is permitted under Section 209-
32.3B.(7) of the Ordinance in the HI-A District as “fuel sales.” ECP contends that
“sales” is defined as “the selling of goods or services.” (ECP’s Br. at 33 (quoting
Webster’s New World College Dictionary).)           ECP asserts that the ZHB


                                        12
erroneously concluded that the proposed use does not constitute “fuel sales”
because there is no sales activity involving the transfer of money and product
occurring on the Property.


      Although the proposed use may be deemed to include “fuel sales” because
ECP is selling propane to homeowners and businesses, our inquiry cannot end with
this conclusion because the Ordinance provides not only for permitted uses, but
also prohibited uses as well. Here, the ZHB found that the proposed storage and
distribution of propane is prohibited in the HI-A District pursuant to Section 209-
32.3.D.(1)(b) because it involves the handling, storage or transferring of a
combustible gas. If the ZHB did not err in making this finding, permitting the
proposed use based solely on the fact that the use involves “fuel sales” would be
contrary to the stated purpose of the HI-A District, which is to safely permit such
sales. As stated previously, the purpose of the HI-A District is to provide for
“product distribution and warehousing . . . fuel sales at locations both
advantageous to the industrial user and safely and aesthetically buffered from
residential and other incompatible uses.” (Section 209-32.3.A of the Ordinance
(emphasis added), R.R. at 453a.) Our Courts have consistently recognized that
“[a] significant factor in determining the reasonableness of land use restrictions in
a zoning ordinance is whether they are consistent with [the] stated purposes of the
particular zoning district.” Keinath v. Township of Edgmont, 964 A.2d 458, 462
(Pa. Cmwlth. 2009) (citing Hock v. Board of Supervisors of Mount Pleasant
Township, 622 A.2d 431, 434 (Pa. Cmwlth. 1993)). “A municipality has the right
to reasonably limit an owner’s absolute right to use his or her property with zoning
ordinances designed to protect or preserve public health, safety and welfare.” Id.


                                         13
(citing Cleaver v. Board of Adjustment of Tredyffrin Township, 200 A.2d 408, 412
(Pa. 1964)).


      We now turn to whether the ZHB erred by finding that the proposed use is
prohibited by Section 209-32.3.D.(1)(b) of the Ordinance because propane is a
combustible gas. ECP challenges the ZHB’s finding by arguing that the proposed
use does not involve a combustible gas, but liquid propane, and propane is not
combustible in its liquid form. For purposes of the proposed use, the propane
would remain in liquid form. ECP asserts that the ZHB erred by speculating that
something could go wrong that might cause the liquid propane to become a gas.


      Section 209-32.3.D.(1)(b) prohibits, in relevant part, “[t]he manufacture,
handling, storage or transferring of basic or semi[-]finished chemicals, such as . . .
combustible gases . . . .” (Section 209-32.3.D.(1)(b) of the Ordinance, R.R. at
453a.) Several of ECP’s witnesses testified as to whether propane is a combustible
gas and the proximity of the Property to residential uses.


      Kenneth Amey testified on behalf of ECP as an expert in land planning and
interpretation of zoning ordinances. Amey testified that he was aware that “liquid
propane is a gas first,” that under pressure propane becomes a liquid, and that if
propane “is then released from pressure[,] . . . it becomes a combustible gas again.”
(Hr’g Tr. at 36, November 12, 2013, R.R. at 144a.) Amey testified further that if
propane “leaked it would return to a gaseous state when it combines with oxygen.”
(Hr’g Tr. at 37, R.R. at 145a; FOF ¶ 46.) Amey also testified that propane, in a
liquid state, would be considered a flammable liquid. (Hr’g Tr. at 41, R.R. at 149a;


                                         14
FOF ¶ 47.) Finally, he testified that the Property “abuts a manufactured home
community to the rear” and that there are residences located on the Property itself
resulting in “people living right next door” to the proposed use of the Property.
(Hr’g Tr. at 32, R.R. at 140a; FOF ¶ 45.)


      Matthew Hiltz testified on behalf of ECP “as an expert in the field of design,
construction and operation of propane storage facilities and the handling of
propane.” (FOF ¶ 63.) Hiltz testified that when liquid propane comes into contact
with oxygen it becomes a gas, which in turn becomes explosive if mixed with the
correct amount of air and exposed to an ignition source. (Hr’g Tr. at 24, 36,
December 12, 2013, R.R. at 226a, 238a; FOF ¶¶ 68-69.) Hiltz testified further that
the closest home to the proposed location of the storage tanks on the Property
would be approximately 200 feet. (Hr’g Tr. at 43, R.R. at 245a; FOF ¶ 70.)


      Christopher Mohler also testified on behalf of ECP “as an expert in the field
of design, construction and operation of propane storage facilities and the handling
and composition of propane.”       (FOF ¶ 73.)     Mohler testified regarding the
penetrability of a propane storage tank. It was Mohler’s opinion that a storage tank
could be penetrated, resulting in a hole; however, the tank would not explode.
(Hr’g Tr. at 75, R.R. at 277a; FOF ¶ 76.) Instead, the propane would be coming
out of the tank at high pressure and, if the propane then mixed with the correct
amount of oxygen and was ignited by an ignition source, the flame “would look
like a blow torch.” (Hr’g Tr. at 75, R.R. at 277a; FOF ¶ 76.) Mohler testified that
“[t]here would be no flame until it met the ignition point, probably a couple feet
away from the tank.” (Hr’g Tr. at 75, R.R. at 277a; FOF ¶ 76.) Finally, Mohler


                                        15
testified that, because of the risk associated with bulk storage of propane, the
industry is heavily regulated requiring extensive insurance coverage naming the
Commonwealth of Pennsylvania as an additional insured. (Hr’g Tr. at 66, R.R. at
268a; FOF ¶ 75.)


      The Township’s witnesses also testified regarding the close proximity of
residential uses to the proposed use of the Property and the safety issues
surrounding the proposed use. Its Zoning Officer, Thomas Bennett, testified that,
based on the testimony presented before the ZHB, he believed that the proposed
use of the Property had changed from what was originally proposed in ECP’s letter
of intent to the “bulk storage of combustible gas.” (Hr’g Tr. at 88-87, R.R. at
288a-89a; FOF ¶ 81.) Bennett testified further that well over 100 mobile homes
are located within one quarter mile of the Property. (Hr’g Tr. at 92, R.R. at 294a;
FOF ¶ 85.) The Township’s Fire Marshal, Richard Dippolito, testified as to his
concerns related to the placement of the storage tanks in close proximity to
residential homes. (Hr’g Tr. at 158, R.R. at 360a.) Specifically, Dippolito testified
that, although there are safety features, if something failed due to human error the
residents of the homes in close proximity of the propane storage tanks would be in
substantial danger. (Hr’g Tr. at 158, R.R. at 360a; FOF ¶ 117.) It was Dippolito’s
opinion that the proposed use would be detrimental to the public welfare. (Hr’g
Tr. at 158, R.R. at 360a; FOF ¶ 118.)


      The foregoing testimony shows that the ZHB’s finding that propane is a
combustible gas is supported by the record. The testimony also supports the
ZHB’s determination that, because propane is a combustible gas and the storage


                                         16
tanks are located as close as 200 feet from residential homes, the proposed use of
the Property, which consists of the handling, storage and transfer of liquid propane,
“would be contrary to the public health, safety and welfare.” (ZHB Decision at
20.) As stated by the ZHB, “[i]t may be that the proposed use would never cause
any problems or issues for the residents that live nearby; however, the risk
associated with the proposed use on the Property is too high for the ZHB to gamble
that nothing will happen.” (ZHB Decision at 20.)


       Accordingly, the ZHB did not err by finding that propane is a combustible
gas and, therefore, ECP’s proposed use is prohibited by Section 209-32.3.D.(1)(b).5


       Next, ECP argues that the Ordinance is substantively invalid because certain
sections are impermissibly vague. It is well-settled that the court reviewing a
challenge to a zoning ordinance must presume that the ordinance is valid. Main
Street Development Group, Inc. v. Tinicum Township Board of Supervisors, 19
A.3d 21, 26 (Pa. Cmwlth. 2011). As we have recognized, “[a] zoning ordinance is
a valid exercise of a municipality’s police power when it promotes public health,
safety or welfare, and its regulations are substantially related to the purpose the
ordinance purports to serve.” Id. at 26-27. The party challenging the ordinance


       5
          Because we hold that the ZHB did not err by finding that ECP’s proposed use is
prohibited by Section 209-32.3.D.(1)(b), we need not address the following issues also raised by
ECP in this appeal: (1) Whether any ambiguity regarding the intended meaning of “product
distribution and warehousing” and “fuel sales” should be construed in ECP’s favor; and (2)
Whether the proposed storage and distribution of propane is not permitted due to the Ordinance
provision that prohibits “the storage of fuels or explosive materials in bulk” where such
provision includes the phrase “[e]xcept as provided herein,” and a prior subsection of the
Ordinance expressly permits “fuel sales.” (ECP’s Br. at 5-6.)

                                              17
bears the heavy burden of proving that the ordinance is invalid, and “where its
validity is debatable, it must be upheld.” Id. at 26. An ordinance will be found to
be vague if “persons of common intelligence must guess at its meaning.” Farley v.
Zoning Hearing Board of Lower Merion Township, 636 A.2d 1232, 1239 (Pa.
Cmwlth. 1994). “‘Vague ordinances ‘proscribe activity in terms so ambiguous that
reasonable persons may differ as to what is actually prohibited,’ and invite
arbitrary and discriminatory enforcement because they do not set reasonably clear
guidelines for law officials and courts.’” Id. (quoting Scurfield Coal, Inc. v.
Commonwealth, 582 A.2d 694, 697 (Pa. Cmwlth. 1990)). Unless an ordinance
“‘fails to convey sufficiently definite warning as to proscribed conduct when
measured against common understanding and practices,’” the ordinance will not be
deemed unconstitutional even if there is some difficulty in determining “whether a
situation falls within the penumbra of statutory language which is challenged as
vague.” Id. (quoting Slovak–American Citizens Club of Oakview v. Pennsylvania
Liquor Control Board, 549 A.2d 251, 253 (Pa. Cmwlth. 1988)).


      ECP asserts that the Ordinance is invalid because it permits “fuel sales” in
Section 209-32.3.B.(7), but then purports to prohibit, in Sections 209-32.3.D.(1)(b)
and (e), “the storage of fuels or explosive materials in bulk” and “storage or
transferring of basic or semi[-]finished chemicals, such as . . . combustible gases.”
(ECP’s Br. at 39.) ECP asserts that Sections 209-32.3.D.(1)(b) and (e) of the
Ordinance are both impermissibly vague, placing certain provisions in conflict
with one another to produce results that are far from sensible.




                                         18
      Initially, we note that ECP did not challenge the validity of Section 209-
32.3.D.(1)(e) before the ZHB. Accordingly, ECP has waived any challenge to this
section of the Ordinance.6       With respect to Section 209-32.3.D.(1)(b) of the
Ordinance, ECP argues that the ZHB erroneously interpreted this section by
placing the examples set forth therein into separate categories of prohibitions
regardless of whether they are basic or semi-finished chemicals. ECP argues that
equally troubling, in the absence of a specific definition in the Ordinance, is that
the ZHB accepted an interpretation of the phrase “combustible gases” to include
uses that do not involve gases at all.


      Upon review, we find ECP’s argument that the Ordinance is invalid based
on the ZHB’s erroneous interpretation of Section 209-32.3.D.(1)(b) unpersuasive.
First, we agree with the Township that although ECP couches its validity challenge
in terms of the Ordinance being impermissibly vague, what ECP is really
challenging is the ZHB’s determination that propane constitutes a combustible gas
and is, thus, prohibited by Section 209-32.3.D.(1)(b) of the Ordinance. As stated
previously, the ZHB determination that propane is a combustible gas is based on
substantial evidence; therefore, we will not revisit that issue.


      Second, the fact that the ZHB did not accept ECP’s planning expert’s
opinion that the handling, storage, and transfer of propane was not prohibited by
Section 209-32.3.D.(1)(b) because propane is a finished chemical, and not a basic


      6
        See In re Appeal of Kreider, 808 A.2d 340, 342 n.4 (Pa. Cmwlth. 2002) (noting that
“when the parties do not request that common pleas hear additional evidence, any issues or
arguments not raised before the ZHB . . . are waived”).

                                           19
or semi-finished chemical, does not render the ZHB’s interpretation of Section
209-32.3.D.(1)(b) erroneous. It was well within the province of the ZHB to,
instead, accept the Township’s planning expert’s testimony “that many of the
chemicals listed in Section 209-32.3.D.(1)(b) after the [qualifying] phrase ‘basic or
semi[-]finished chemicals such as . . .’ are themselves finished chemicals, such as
fertilizer, asphalt, soap and detergent that, like propane, require no additional
process to become finished.” (ZHB Decision at 16.) Thus, the fact that the items
listed in Section 209-32.3.D.(1)(b) as examples of basic or semi-finished chemicals
could also be considered finished chemicals does not render this section
impermissibly vague as argued by ECP. In other words, Section 209-32.3.D.(1)(b)
of the Ordinance does not “‘proscribe activity in terms so ambiguous that
reasonable persons may differ as to what is actually prohibited.’” Farley, 636 A.2d
at 1239 (quoting Scurfield Coal, Inc., 582 A.2d at 697). Therefore, we conclude
that the Ordinance is not substantively invalid.


      For the foregoing reasons, the trial court’s Order is affirmed.



                                          ________________________________
                                          RENÉE COHN JUBELIRER, Judge




                                         20
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



East Coast Propane, LLC,             :
                                     :
                       Appellant     :
                                     :
           v.                        :   No. 185 C.D. 2015
                                     :
Falls Township Zoning Hearing        :
Board and Falls Township             :



                                   ORDER

     NOW, November 10, 2015, the Order of the Court of Common Pleas of
Bucks County, entered in the above-captioned matter, is hereby AFFIRMED.




                                     ________________________________
                                     RENÉE COHN JUBELIRER, Judge
