        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Herbert Newhart and Colleen Newhart,    :
his wife,                               :
                  Appellants            :
           v.                           : No. 1020 C.D. 2015
                                        : Submitted: January 15, 2016
Plains Township Board of                :
Commissioners and 100 Second Street     :
Properties, LLC, 141 Second Street      :
Properties, LLC, and M.P.R. Realty      :
Associates, LLC                         :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                     FILED: April 21, 2016

            This is an appeal from the May 14, 2015 order of the Luzerne County
Court of Common Pleas (Trial Court) affirming the May 10, 2012 decision of the
Plains Township Board of Commissioners (Board) to approve a conditional use
application for an automotive wrecking yard/junk yard to be located on two parcels
of real property (collectively, Property) located in Plains Township, Luzerne
County, subject to enumerated conditions. Each parcel is located in the I-1 Zoning
District, where an automotive wrecking yard/junk yard is permitted as a
conditional use. The applicants are 100 Second Street Properties, LLC and 141
Second Street Properties, LLC (Applicant)1 and the trade name under which
Applicant proposes to operate this business at the Property is Harry’s U-Pull-It.
Appellants are Herbert Newhart and Colleen Newhart, his wife (Objectors), who
reside adjacent to the Property. For the reasons set forth below, we affirm.
             A conditional use is granted by a municipal legislative body pursuant
to the express standards and criteria set forth in the zoning ordinances enacted
pursuant to the police powers to regulate land use.              Section 603(c) of the
Pennsylvania Municipalities Planning Code (MPC), Act of July 1, 1968, P.L. 805,
as amended, 53 P.S. §10603(c); Appeal of Richboro CD Partners, L.P. from the
Decision of the Board of Supervisors of Northampton Township dated January 15,
2012, 89 A.3d 742, 745 (Pa. Cmwlth. 2014). The fact that a use is permitted as a
conditional use, rather than prohibited, reflects a legislative decision that the use is
not per se adverse to the public interest. K. Hovnanian Pennsylvania Acquisitions,
LLC v. Newtown Township Board of Supervisors, 954 A.2d 718, 725 (Pa. Cmwlth.
2008). To demonstrate that an applicant is entitled to the conditional use, the
applicant initially bears the burden of establishing that the application complies
with the objective standards and criteria of the particular ordinance. Visionquest
National, Ltd. v. Board of Supervisors of Honey Brook Township, Chester County,
569 A.2d 915, 917 (Pa. 1990). Satisfaction of the applicant’s burden establishes a
legislative presumption that the use is consistent with the health, safety, and
welfare of the community. Susquehanna Township Board of Commissioners v.
Hardee’s Food Systems, Inc., 430 A.2d 367, 369 (Pa. Cmwlth. 1981). Once the


1
  On June 4, 2014, M.P.R. Realty Associates, LLC, the owner of the parcel located at 141
Second Street, which was subject to an Agreement of Sale with 141 Second Street Properties,
LLC, filed a Petition to Intervene, which was granted by the Trial Court.


                                            2
applicant satisfies this initial burden, the burden shifts to the objectors to rebut this
presumption by establishing that the use will have a detrimental impact on the
public health, safety and welfare. Joseph v. North Whitehall Township Board of
Supervisors, 16 A.3d 1209, 1215 (Pa. Cmwlth. 2011).
             Applicant submitted the conditional use application in January 2012
and a public meeting was held before the Plains Township Planning
Commissioners, who recommended approval; a public hearing before the Board
was held on March 5, 2012, at which Applicant presented the testimony of Harry J.
Kress Jr., one of Applicant’s principals and George Albert, a licensed engineer. In
opposition to the application, Objectors testified and also offered testimony from
Joseph M. Calabrese, a licensed engineer and Linda Yale, a resident of a property
adjacent to the Newharts’ property. (March 5, 2012 Hearing Transcript (H.T.),
Reproduced Record (R.R.) at 23a-60a.)
             Applicant’s licensed engineer testified that one parcel of the Property
was formerly a trucking operation and a truck storage area and yard, and the other
parcel was vacant. (H.T., R.R. at 39a.) He testified further that the contiguous
properties, other than that of Objectors’ property on the easternmost corner, are all
industrial: “Red’s Towing” is located on the north side and other storage facilities
are located on the northeast side; an Army Reserve Center where vehicles are
staged is located on the west side of the Property and on the other side of Second
Street, there are heavier industrial uses. (H.T., R.R. at 41a-42a.) At the hearing,
Applicant presented an overlay of the site plan, as a revision to the original site
plan, which depicts a relocated fence along the border at the corner of the Property
contiguous to Objectors’ residence; the proposed fence is relocated to sit at least
fifty feet from the corner of Objectors’ property line instead of twenty feet as


                                           3
originally proposed, and contemplates the construction of an earthen berm, eight to
ten feet high, with arborvitae at six to eight feet, to create a natural buffer between
the corner of the Property and Objectors’ property approximately fourteen to
sixteen feet high, with the fence inside of that area.       (Conditional Site Plan,
Applicant’s Exhibit A-4, Modified plan with additional buffer zone; H.T., R.R. at
41a.)
              The Board approved the application on May 10, 2012 subject to the
following conditions:
             1. Hours/Days of Operation: Monday-Saturday
                   a. Summer (May-October) 7:30am to 7:00pm
                   b. Winter (November-April) 7:30am to 4:00pm
                   c. Closed on Sunday and all Federal Holidays

             2. Buffer Zone:
                   a. Cork sound barrier around property bordering
             residential zone no closer than 100ft from property lines.
             Nothing else closer than 100ft except Earthen
             mounds/Evergreen trees consistent with present
             Township Ordinance.

                    b. Fencing along remainder of property of slatted
             variety no closer than 20ft from the property line. This
             fencing and barrier shall be consistent with present
             Township ordinance.

             3. Sewer line installed to main building at all times.

             4. Compact[e]r/Crusher use only two (2) days a week
             from 10:00am to 3:00pm. Said Compacter/Crusher shall
             be located on the south corner of the operational storage
             area with its location to be approved by the Township
             Board of Commissioners.

             5. The number of vehicles in the lower lot shall be
             limited to 800 cars.          No vehicles except for
             employees/customers shall be allowed in the upper lot
             except for processing the vehicles for sale.
                                          4
               6. Operator of business shall control dirt and dust so as to
               not create a nuisance to any neighboring properties.

               7. Any lighting of the property must be directed away
               from residential district and properties.

               8. Applicant shall comply with all other rules, regulations
               and Ordinance of Plains Township not inconsistent with
               these conditions.
(May 22, 2012 letter from Board counsel, R.R. at 11a.) The Board set forth
findings of fact and conclusions of law in support of its decision, and determined
that upon review of the testimony presented at the hearing, conditional use should
be granted as “adequate information and evidence had been provided and certain
specific conditions placed on Applicant so that it meets the requirements for the
Conditional Use in question and would protect the public health, safety and general
welfare.” (Findings of Fact and Conclusion of Law In Support of Decision of
Plains Township Board of Commissioners Conditional Use Approval (Board
Findings and Conclusions), Conclusions of Law (C.L.) ¶11, R.R. at 17a.)
                 Following the Board’s decision to approve the conditional use,
Objectors filed a notice of appeal, briefs were filed and an oral argument was held
before the Trial Court on November 10, 2014; no new evidence was received by
the Trial Court. On May 14, 2015, the Trial Court issued its order and this appeal
followed.2


2
  In conditional use proceedings where the trial court has taken no additional evidence, the board
is the finder of fact, empowered to judge the credibility of witnesses and the weight afforded to
their testimony; a court may not substitute its interpretation of the evidence for that of the board.
Tennyson v. Zoning Hearing Board of West Bradford Township, 952 A.2d 739, 743 n.5 (Pa.
Cmwlth. 2008). Because the Trial Court has not taken additional evidence, our Court’s review in
this appeal is limited to determining whether the Board committed an error of law or an abuse of
(Footnote continued on next page…)
                                                 5
              Objectors argue, first, that the Board erred in approving the
conditional use application because Applicant did not comply with the application
and site plan requirements set forth in Section 704 of the Plains Township Zoning
Ordinance. Section 704 requires the submission of a site plan at a scale of not
greater than one (1”) inch equal TO fifty (50’) feet, which indicates, inter alia, the
location and size of all buildings and structures, open space, parking areas, traffic
access and circulation; contours of the site for each two feet of change in elevation,
based upon a site field survey; streams, ponds, or any other bodies of water located
on and within five hundred (500) feet of the site; the location, type and height of
any required screening; a narrative outline describing the proposed use and its
pertinent operational aspects and features; and “any other information required by
the [Board] for determining the conformance of the conditional use with the
regulations for that particular use.” (Zoning Ordinance Sections 704(A)(1)-(11),
R.R. at 112a-113a.)
               Objectors aver that because Applicant’s site plan (i) is at a scale
greater than that permitted by the Ordinance; (ii) fails to show the origin of the
topography including the date of the field survey and the name of the surveyor;
(iii) fails to show the square footage of the building, the location and size of
proposed parking areas and traffic directions on the driveway and within the
interior of the site; (iv) fails to show streams, ponds or other bodies of water
located within 500 feet of the site; and (v) fails to show the type and height of




(continued…)
discretion. Joseph v. North Whitehall Township Board of Supervisors, 16 A.3d 1209, 1215 n.3
(Pa. Cmwlth. 2010).


                                            6
screening or fence to be provided, it does not meet the specific, objective
requirements of Section 704 of the Ordinance.
              We find, however, that Applicant has substantially complied with the
application and site plan requirements set forth in Section 704 of the Ordinance
and provided more than sufficient information to enable the Board to make its
determination as to whether the proposed use can function as intended on the
Property. In the course of the public hearing, as found by the Board, Applicant
provided information in the form of a narrated video that showed specifically how
and where - on the two parcels that make up the Property - the business would be
operated; Applicant demonstrated where vehicles would be brought onto the
Property, where they would be drained of fluid, where they would be located for
sale and where customers would park. (Board Findings and Conclusions, Finding
of Fact (F.F.) ¶7, R.R. at 14a-15a.) Applicant’s licensed engineer testified that the
proposed site plan as submitted referred to the eight foot high buffer fence and
trees to be planted as a screen for the entire site (H.T., R.R. at 43a), and the general
notes included on the site plan indicate that the screen shall not be located closer
than twenty feet to any property line. (Conditional Site Plan.) The square footage
of the existing building on the Property and the square footage of the existing
paved area are set forth on the legend section of the site plan. (Conditional Site
Plan.)   In its finding of facts, the Board noted the licensed engineer’s testimony as
to the installation of a fence and construction of an earthen mound with trees to add
a natural buffer to the residential properties abutting the Property. (Board Findings
and Conclusions, F.F. ¶9.)     Applicant’s licensed engineer acknowledged that the
submitted site plan, which includes topographic information, was not based upon a
field study performed by Applicant, but stated rather that Applicant had utilized an


                                           7
old survey that had been sealed by another licensed surveyor, and was in the
process of performing its own field survey. (H.T., R.R. at 47a.) The Board
concluded that the facility as proposed would have proper access for emergency
vehicles, and further concluded that it had considered the testimony of all parties
and the exhibits submitted, and believed that “Applicant did meet the standards set
forth in the Zoning Ordinance….” (Id., C.L. ¶¶ 14,17.)
                Objectors argue further that Applicant failed to demonstrate
compliance with Sections 1101-1123 of the Ordinance. We disagree.         Article 11,
Sections 1101-1123 of the Ordinance govern off-street parking and loading and set
forth requirements for parking and access drives; grading, pavement and drainage
of off-street parking; screening, lighting; and handicapped accessible spaces.
                In Broussard v. Zoning Board of Adjustment of the City of Pittsburgh,
907 A.2d 494 (Pa. 2006), the Pennsylvania Supreme Court addressed the
circumstances under which an application for a special exception for off-site
parking may be granted, distinguishing the decisions of this Court in Edgmont
Township v. Springton Lake Montessori School, Inc., 622 A.2d 418 (Pa. Cmwlth.
1993), Lafayette College v. Zoning Hearing Board of the City of Easton, 588 A.2d
1323 (Pa. Cmwlth. 1991), and Baird v. New Britain Township, 537 A.2d 976 (Pa.
Cmwlth. 1988), upon which Objectors rely. In Broussard, the Supreme Court held
the grant of a special exception to be appropriate, noting that in each of the three
cases decided by this Court, the property owner had failed to include in its
submissions before the zoning board any indication of an intention to fulfill the
conditions associated with the special exception at issue,3 whereas the applicant in


3
    The Supreme Court stated:
(Footnote continued on next page…)
                                           8
Broussard submitted a plan that addressed all of the ordinance’s prerequisites for
the special exception sought, and reasonably showed that the property owner was
able to fulfill them in accordance with the procedures set forth by the zoning code,
as reasonably interpreted by the board. 907 A.2d at 501-502. Here, the Board
found that Applicant’s witness provided testimony as to the location of customer
parking, and also noted the licensed engineer’s testimony that although the site
plan does not indicate exact parking spaces or traffic circulation, he testified that
there was sufficient access to the parcels of land. (F.F. ¶¶ 7, 11.) In its 1925(a)
opinion, the Trial Court concluded that substantial evidence exists to demonstrate
the conditional use application’s conformity with Sections 1101-1123 of the
Ordinance, citing specifically to that portion of the cross-examination of
Applicant’s principal wherein he testified as to the access road by which vehicles
will enter the Property, where they will be staged, and where customer parking will
occur. (Trial Court 1925(a) Opinion, R.R. at 244a.)



(continued…)
              The Edgmont court, for example, did not suggest that the proposed
              land and building alterations had to be performed before a special
              exception could issue; rather, so long as the plan included these
              provisions in a satisfactory manner, approval could be conditioned
              upon full compliance with the plan at a later date. Because,
              however, the zoning board had approved the special exception
              solely upon the landowner’s promise to revise the plan to come
              into compliance with the zoning code, the court
              reversed…[l]ikewise, the applicant in Baird simply expressed his
              general purpose to comply with applicable regulations, but there
              was nothing in the proposal as submitted to the board that reflected
              any intent to do so; and in Lafayette College, the school’s plan
              simply did not satisfy the zoning code’s parking requirements.
 Broussard, 907 A.2d at 501-502.



                                               9
               Objectors next argue that Applicant failed to meet the requirements of
Section 708 of the Ordinance, which requires the submission of an Environmental
Impact Statement, including a response to a series of items set forth in subsections
708.01-708.13.4 The transcript from the hearing held before the Board on March
5, 2012 includes an Index of Exhibits including ‘Applicant Exhibit 4 -
Environmental Impact Study.’ (H.T., R.R. at 24a.) This study is referred to during
the hearing before the Board and was admitted into evidence; however, it is not
part of the record. Objectors argue specifically that Applicant violated Ordinance
subsection 708.2(g) by failing to submit a sufficient storm water management plan,
and present the memorandum report of its licensed engineer, which sets forth a
number of issues with Applicant’s application materials.5 (Exhibit A, Joseph M.


4
 These items include, inter alia: Section 708.02(g) - a storm water management plan which shall
be developed in coordination with the soils erosion and sedimentation plan; Section 708.04(a) -
maximum existing elevation of site; Section 708.06(a) - source and adequacy of water to be
provided to the site; Section 708.10(a) - noise levels, above existing levels, anticipated to be
generated at the site (source and magnitude), during and after construction; and 708.11(j) -
projected amount and type of traffic to be generated and the effects of the same on public roads
and highways.

5
  By memorandum dated March 5, 2012, Joseph M. Calabrese, P.E. offered comments regarding
his review of the materials submitted by Applicant as of January 30, 2012. Mr. Calabrese stated,
inter alia, that the larger scale of the site plan submitted prevents the provision of detail required
to make an informed decision; that the square footage of the existing building on the site has not
been indicated, and proposed parking space locations are not shown; that it appears the
topography shown has not been based on a field survey; that no bodies of water are shown on the
site plan; that the plan does not detail the type of fence to be installed; that stabilizing the entire
site is critical for dust control; and that no empirical data is provided on the expected noise levels
at the site. The memorandum also questions whether existing water service connection to the
building is of adequate size and condition to meet water needs; whether the existing sewer lateral
servicing the building is adequate, and why a Preparedness, Prevention and Contingency (PPC)
Plan has not been submitted for review given that all fluids are to be removed from vehicles on
site, and questions how the average daily traffic to be generated was estimated and how the
(Footnote continued on next page…)
                                                 10
Calabrese, P.E. Review of Materials Submitted, R.R. at 85a-88a.). In its 1925(a)
opinion, the Trial Court found that there was substantial record evidence
demonstrating Applicant’s conformity with Ordinance Section 708, citing specific
pages of the hearing transcript wherein Applicant’s witnesses offered information
regarding numbers of vehicles, numbers of customers, numbers of employees,
information about noise emitted and elevations. (Trial Court 1925(a) Opinion,
R.R. at 243a.)      The Trial Court also referred to testimony from Applicant’s
licensed engineer wherein he stated that the storm management plan was in fact
attached to the back of the environmental study, and provided information with
regard to surface area paving plans and water and sewer provisions, with estimated
usages per day; Applicant’s licensed engineer was questioned about Applicant’s
environmental assessment regarding noise levels and he offered information
regarding changes in air quality, stating that all operational equipment was
monitored and regulated by the PA Department of Environmental Protection.
(H.T., R.R. at 48a.)         Applicant’s licensed engineer further testified as to
Applicant’s statement, in the environmental impact study, that there will be no
‘critical areas,’ as that term is defined in the Ordinance, based upon its
determination, made in reliance upon National Wetland Inventory maps, that there
were no wetlands within two thousand feet of the Property. (Id.) Accordingly, we
determine that the Board’s findings that the proposed use “currently has proper
sewage disposal and water” and is not “more objectionable in terms of noise,
fumes, odor, vibrations and lighting [than] operations of any permitted use in an


(continued…)
determination that no critical areas exist within 2000’ of the site was made. (Exhibit A, Joseph
M. Calabrese, P.E. Review of Materials Submitted, R.R. at 85a-88a.)


                                              11
Industrial District,” are supported by substantial evidence, and that the Board has
not abused its discretion in determining that Applicant met the standards set forth
in the Ordinance.
                Finally, Objectors argue that Applicant failed to satisfy the
requirements of both Sections 706 and 802.19 of the Ordinance. Section 802.19
provides supplemental regulations for the specific use of ‘junk yards and
automotive wrecking yards.’6 Section 706 sets forth the general standards to be
utilized in review of applications and site plans, including:

                A. The proposed use shall not jeopardize the community
                objectives [of] this Ordinance nor shall it adversely affect


6
    Section 802.19 of the Ordinance provides, in relevant part:
          All new junk yards and automotive wrecking yards shall comply with the
          following:
                 A. Such premises shall at all times be maintained so as not to
                 constitute a nuisance or menace to the health of the community or
                 residents nearby or a place for the breeding of rodents and vermin.
                                                    …
                 G. The manner of storage and arrangement of junk and the
                 drainage facilities on the site shall be such as to prevent the
                 accumulation of stagnant water upon the premises. A storm water
                 drainage plan shall be required.
                                                    …
                 I. There shall be a roadway fourteen (14’) feet in width provided
                 for every forty (40) linear feet of junk. The roadway shall be kept
                 open and unobstructed for proper access for firefighting equipment
                 and safety purposes.
                 J. Junk shall not be stored within one hundred (100’) feet of any
                 adjoining property line or nearer than one hundred (100’) feet to
                 any adjoining or abutting street.
                 K. All junk yards shall be completely screened from view on all
                 sides by a buffer area as so defined in Article 2 of this Ordinance.
                 The required fence shall not be closer than twenty (20’) feet to any
                 property line.


                                             12
            the health, safety and welfare of the public and/or the
            environment.
                                        ---
            C. Existing and future streets and access to the site shall
            be adequate for emergency services, for avoiding undue
            congestion, and for providing for the safety and
            convenience of pedestrian and vehicular traffic.

            D. The relationship of the proposed use to other activities
            existing or planned in the vicinity shall be harmonious in
            terms of location and size relative to the proposed
            operation and the nature and intensity of the operation
            involved.

            E. The relationship of the proposed use to other activities
            existing or planned in the vicinity shall be harmonious in
            terms of the character and height of structures, buildings,
            walls and fences, so that the use, and development of
            adjacent property is not impaired.

            F. The proposed use shall not be more objectionable in its
            operation in terms of noise, fumes, odors, vibration or
            lighting than would be the operations of any permitted
            use in the district.

            G. The submission of an Environmental Impact
            Statement for all nonresidential conditional uses in
            accordance with Section 708 of this Ordinance, and all
            subsections thereunder.
                                         ---

(Zoning Ordinance Section 706, R.R. at 113a-114a.) The Trial Court opined that
substantial record evidence existed to demonstrate the conformity of the proposed
conditional use application with the provisions of Section 706 of the Ordinance,
specifically citing seventeen individual pages of the hearing transcript containing
testimony from Applicant’s licensed engineer regarding, inter alia, emergency
vehicle access, noise, fencing/screening, creation of a sound barrier, paving/dust
control, trash disposal, expected numbers of vehicles on the Property and

                                        13
equipment placement. (Trial Court 1925(a) Opinion, R.R. at 243a.) The Trial
Court further concluded that substantial evidence existed to demonstrate the
conditional use application’s conformity with Section 802.19, specifically citing
twelve individual pages of the hearing transcript wherein evidence as to the
maintenance and operation of the proposed automotive wrecking yard was offered.
(Id., R.R. at 243a-244a.) The ‘General Notes’ included on the Conditional Use
Site Plan include information regarding the prohibition of burning of any materials,
and the storage of garbage, rubbish or toxic materials on site; the notes provide that
a fourteen foot-wide access road shall be provided for every forty linear feet of
reclaimed material, and said roadway shall be kept open and unobstructed for
proper access for emergency and safety purposes. The Conditional Use Site Plan
further provides information regarding the existing public water and sewer supply
on site and indicates that no solid waste will be developed and/or processed during
and after construction, nor will there be changes to air quality during or after
construction.
                We find no error in the Board’s conclusion that Applicant has
demonstrated by substantial evidence its compliance with the objective standards
and criteria of the Ordinance. Objectors argue that the Board failed to rely upon
the credible expert testimony of their licensed engineer, and should credit their
expert’s opinion that the application is deficient relative to the general and specific
requirements for its approval as outlined in the Ordinance. However, our courts
have made clear that the Board is the sole judge of the credibility of witnesses, and
has exclusive authority to determine the weight to be afforded to their testimony.
Appeal of Richboro CD Partners, L.P., 89 A.3d at 755; Tennyson, 952 A.2d at 743
n.5. Further, the Board is entitled to considerable deference in interpreting the


                                          14
Ordinance. Caln Nether Co., L.P. v. Board of Supervisors of Thornbury Township,
840 A.2d 484, 491 (Pa. Cmwlth. 2004).
             The Board found that the proposed use did not jeopardize the
community objectives of the Ordinance nor did it adversely affect the health, safety
or welfare of the public or environment, so long as the specific conditions
enumerated were met. (Board Findings and Conclusions, C.L. ¶ 13, R.R. at 208a.)
It further concluded that the proposed use was consistent with that which
previously existed and most of the surrounding vicinity. (Id., C.L. ¶ 15, R.R. at
209a.) Recognizing that there is a residential use adjacent to one of the parcels, the
Board noted that the proposed use is in an industrial zone, and sufficient
safeguards had been put into place to protect the residential properties. (Id.) The
burden on objectors to produce evidence of a detrimental effect by the proposed
use on the public health, safety and welfare is a heavy one.           Sunnyside Up
Corporation v. City of Lancaster Zoning Hearing Board, 739 A.2d 644, 649 (Pa.
Cmwlth. 1999). Objectors are required to present evidence that establishes, to a
high degree of probability, that the use will generate impacts not normally
associated with the type of use and that the impacts generated would pose a
substantial threat to the health and safety of the community. In re Brickstone
Realty Corporation, 789 A.2d 333, 342 (Pa. Cmwlth. 2001).
               The Trial Court opined that the Board “did not abuse its discretion
in determining that the [Objectors] did not sustain their burden in establishing that
the proposed use will have a detrimental impact on the surrounding community,”
and stated that they “have failed to establish ‘to a high degree of probability, the
proposed use will adversely affect the public welfare in a way not normally
expected from this type of use.”’ (Trial Court 1925(a) Opinion, R.R. at 244a,


                                         15
quoting Aldridge v. Jackson Township, 983 A.2d 247, 253 (Pa. Cmwlth. 2009).)
Objectors’ assertions of adverse impacts upon public health, welfare and safety
were based primarily on the opinion of their licensed engineer that the proposed
access drive and street is inadequate and there is a possibility of leakage from the
vehicles, and the testimony of Mrs. Newhart, who expressed her concerns that a
fence cannot prevent noise, dust or fumes from reaching her property, that other
businesses will elect not to locate themselves adjacent to the proposed use, and that
there will be environmental hazards as a result of liquids leaking into the ground.
However, the Board not only found specifically that there was proper access for
emergency vehicles, and that the proposed uses are “not more objectionable in
terms of noise, fumes, odor, vibrations and lighting than operations of any
permitted use in an Industrial District,” but it also placed conditions upon
Applicant so as to protect the health, safety and welfare of the surrounding
neighbors. (Board Findings and Conclusions, R.R. at 18a.) We conclude that the
Board did not err in its decision to grant conditional use approval and accordingly,
the Trial Court’s order is affirmed.




                                       ____________________________________
                                       JAMES GARDNER COLINS, Senior Judge




                                         16
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Herbert Newhart and Colleen Newhart,   :
his wife,                              :
                  Appellants           :
           v.                          : No. 1020 C.D. 2015
                                       :
Plains Township Board of               :
Commissioners and 100 Second Street    :
Properties, LLC, 141 Second Street     :
Properties, LLC, and M.P.R. Realty     :
Associates, LLC                        :


                                ORDER


           AND NOW, this 21st day of April, 2016, the May 14, 2015 order of
the Luzerne County Court of Common Pleas is AFFIRMED.




                                   ____________________________________
                                   JAMES GARDNER COLINS, Senior Judge
