Conditional Use • Zoning • Wastewater Treatment Facility

The Voice of the Jordan v. North Whitehall Twp. Bd. of Supervisors, PICS Case No. 14-0161 (C.P. Lehigh June 5, 2013) Reibman, J. (14 pages).

The court affirmed the decision of the North Whitehall Township Board of Supervisors which approved a conditional use application of the Lehigh County Authority to operate a wastewater treatment facility.

The Voice of Jordan was a homeowners group that objected to the treatment plant. LCA had submitted a conditional use application to operate a 200,000 gallon per day wastewater treatment plant on a five-acre tract located within the township. The lot on which the facility was to be located was adjacent to an existing wastewater treatment facility. The proposed facility was to be a replacement for the existing plant and would use the same discharge location. Among the residents to be served by the facility was a tentative Walmart store. The board issued a decision on October 23, 2012, granting approval subject to certain conditions. VOJ appealed that determination.

VOJ argued the members of the board should have recused themselves because the township stood to receive a $1.5 million payment from Walmart upon final clearance allowing occupancy of its proposed store. The court rejected this argument. No individual supervisor stood to benefit personally from the approval or payment from Walmart. The fact a political body stood to benefit from a land-development initiative was not a sufficient basis to require recusal.

VOJ also contended that the board erred in approving the conditional use application by “re-writing” an ordinance and disregarding a provision which prevented a property from generating offensive odors beyond the boundaries of the subject lot. The court found evidence that this was not the case. LCA called an expert witness, Spitko, a licensed professional engineer with experience in the design, construction and operation of wastewater facilities for municipalities. He testified the aerobic treatment process would mitigate the odor issues, and along with odor reducing chemicals, Spitko stated the odors from the proposed facility would be contained on site. VOJ’s expert suggested inhospitable weather or machine malfunctions could lead to odor escaping. However, the court held the board was not obligated to credit VOJ’s expert over the testimony of the expert for LCA, nor was the board required to apply a standard other than normal operating conditions.

Where a use is consistent with the zoning plan, it should be denied only when the adverse impact upon the public interest exceeds that which might be expected in normal circumstances. An applicant is not obligated to negate every speculative, remote possibility.

The board did not abuse its discretion or commit an error of law in declining recusal. The court found competent evidence in the record upon which the board could have reasonably concluded LCA complied with all applicable requirements for the conditional use.