Storage of Chlorine and Fluorides Cited as Hazard of Water Treatment Operations

>

SUBSEQUENT HISTORY:

 [**1] 

Petition for Allowance of Appeal Granted August 6, 1996, Reported at:
1996 Pa. LEXIS 1608.

PRIOR HISTORY: APPEALED From No. 92-40 and 92-147. Common Pleas Court of the county of
Centre. Judge GRINE.

COUNSEL: R. Timothy Weston, for appellant, State College Borough Water Authority.

 

David C. Keiter, for appellants, Eric J. and Christine F. Levin.

 

Ben Novak, for appellee, Benner Township.

JUDGES: BEFORE: HONORABLE DORIS A. SMITH, Judge, HONORABLE JAMES R. KELLEY, Judge,
HONORABLE SAMUEL L. RODGERS, Senior Judge.

OPINIONBY: JAMES R.
KELLEY

OPINION:

 

 [*1065]  OPINION BY JUDGE KELLEY

FILED: December 28, 1995

 

Before this court are consolidated cross-appeals by the State College Water
Authority (Authority) and Eric J. Levin and Christine F. Levin (Levins),
intervenors below, from the January 17, 1995 order of the Court of Common Pleas
of
Centre County (trial court). The trial court found: (1) that there

 [*1066]  was substantial evidence to support the grant of the Authority’s conditional
use application by the Board of Supervisors of Benner Township (board); and (2)
that six conditions challenged by the Authority which were imposed on the grant
of the conditional use were reasonable conditions.

This is the second
time that this court has heard appeals in this matter. This court previously
reversed a February 8,

 [**2]  1993 order of the trial court, which reversed the grant of the conditional use
application by the board, and remanded this matter to the trial court to
address the following issues:

1. Whether there is substantial evidence to support the grant of the
conditional use application by the board to the Authority; and2. Whether conditions 1, 2, 3, 4, 5, and 14 imposed on the grant of the
conditional use are reasonable conditions.

 

State College Water Authority v. Board of Supervisors of Benner Township, Center County, 165 Pa. Commw. 405, 645 A.2d 394, 400 (Pa. Cmwlth. 1994) (Benner I). n1

 

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n1 In Benner I, we held that in light of a governing body’s authority pursuant
to the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L.
805, as amended,
53 P.S.
§§ 10101 – 1120l, to attach reasonable conditions and safeguards to the grant of
a conditional use, the trial court committed an error of law in concluding that
the board lacked authority to impose conditions modifying the Rothrauff rule.
See
Rothrauff v. Sinking Spring Water Company, 339 Pa. 129, 14 A.2d 87 (1940) (A property owner may not concentrate waters and convey them off his land if
the springs or wells of another landowner are thereby damaged or impaired).

 

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
 [**3] 

The within cross appeals require this court to restate the history of this case
as substantially
set forth by this court in Benner I. On May 10, 1990, the Authority filed an
application for a conditional use of its property with the board. Reproduced
Record (R.) at 6a. The proposed use of the lots, as set forth in the
application, was:

 

To erect service buildings for the pumping,
treatment and distribution of well water. The water sources have currently been
drilled, lined and capped.

 

Id. The lots are located in the Airport Commercial Zoning district (C-A
District).

The board conducted several hearings spanning a period from September 4, 1990
through December 10, 1991. On
December 17, 1991, the board filed its findings of fact, conclusions of law and
decision. The board made the following relevant findings of fact.

 

2. The [Authority’s] water service area includes most of State College Borough,
and parts of College, Harris, Ferguson and Patton Townships.

 

. . . .

 

4. The average daily
water demand of the [Authority’s] system is 4.53 million gpd. …

 

. . . .

 

7. [Authority] filed a request for approval of a conditional
 [**4]  use on the lots. The proposed use of the lots is to operate a well pumping
field to pump water from 3 wells drilled on the lots, to treat the water, and
to pump it
through pipes to be laid along Airport Road and Foxhill Road, to a connection
with [Authority’s] presently existing water distribution system. The proposed
use contemplates drilling for subterranean or percolating water which is to be
pumped to the surface and piped away from the property to supply the public
water system of the [Authority].8. [Authority] has requested permits from the Pennsylvania Department of
Environmental Resources (“DER”) and the Susquehanna River Basin Commission (“SRBC”) to pump up to 3 million gpd out of the wells. n2 The estimated top capacity
of the wellfield is 4.6 million gpd.

 

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n2 The Susquehanna River Basin Commission issued
a decision approving the Authority’s application for a permit to pump 4.7
million gallons per day on January 23, 1992.

 

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –

. . . .

 

12. It was testified by experts that the proposed
 [**5]  pumping operation could possibly have an effect upon water wells located on
other properties in the
Township. Most occupied properties in the Township are supplied by on-site well
water.

 

 [*1067]  . . . .

 

15. [Authority] offered and agreed that if any well within the recharge area
(as defined in Paragraph 13 above), goes dry or is dewatered after operation of
the wellfield commences, it shall be presumed to go dry
by reason of the operation of the wellfield and [Authority] shall immediately
supply temporary water service within 48 hours and shall extend water mains and
all necessary connections to the property at no cost to the property owner. The
residents after connection shall pay standard water rates as customers of the
[Authority].

 

. . . .

 

19. The [Authority] intends to drill wells and pump water from the subterranean
and percolating waters under the lands of [Authority], and to transfer the
water away, off the lands, into the public water system of the [Authority] to
be supplied to meet the water supply needs of the customers of the [Authority].

 

R. at 661a-66a.

The board, in its decision,
imposed sixteen (16) conditions on the grant
 [**6]  of the Authority’s conditional use. The Authority challenges the following six
(6) imposed conditions.

 

1. Monitoring. [Authority] agrees to monitor all wells within one and one half
(1 1/2) miles of the well site for any landowner who requests such monitoring. [Authority] shall advertise in a newspaper of general circulation in the
Township its offer to install monitoring devices once each year for three
successive years. [Authority] shall also send notice to every landowner within
one and one half (1 1/2) miles of the
well site offering to install a monitoring device at the expense of
[Authority]. Such monitoring devices shall be installed upon consent of the
landowner for a period of 18 months, and shall be renewable as of right for
successive periods at the request of the landowner. Any landowner within the
one and one half (1
1/2) miles radius may request monitoring at any time. The Township and the
property owner shall be supplied the results of the monitoring. All monitoring
devices, installation costs, periodic monitoring, and reporting costs shall be
at the expense of [Authority].2. Reducing Draw. If the monitoring of wells pursuant to Condition
 [**7]  #1 above
reveals a falling of the water table sufficient to adversely effect wells on
neighboring lands (or the Benner Spring or other springs of the Pennsylvania
Fish Commission in Centre County), then the [Authority] shall reduce the draw
of water from the proposed wellfield so as to prevent or cease the adverse
effect upon the wells and springs of
residents or landowners and the springs of the Pennsylvania Fish Commission.3. Well Failure Within One and One Half (1 1/2) Miles from Well Site. If any
landowner’s well within one and one-half (1 1/2) miles of the well site fails
because of the drop in water
level, [Authority] shall provide temporary water service (water buffalo) within
at least 48 hours of notice thereof at the cost of the [Authority]. [Authority]
also agrees that, unless it can be clearly shown by [Authority] that the well
did not go dry by reason of [Authority’s] well pumping operation, [Authority]
shall extend lines from its well site to the property and connect to the
residence or structure to be served, at the cost of [Authority], within three
months or as soon as can reasonably be done. Said residents, after connection,
shall pay standard
 [**8]  water rates for water service.4. Wells Beyond One and One-Half Miles from Well Site. If wells within the one and one-half (1 1/2) miles
radius go dry, it shall be presumed that wells beyond the one and one-half (1
1/2) miles distance for the well site which go dry at the same time or
thereafter shall be presumed to also go dry by reason of [Authority’s]
operation, and [Authority] shall immediately supply temporary water service
within 48 hours of notification, and shall extend lines to said properties and
connect to the residence or structure to be served to replace their water
service within three months or as soon as
reasonably possible, at the expense of [Authority]. Such residents, after
connection, shall pay standard water rates.
 [*1068]  5. Agricultural Rates. Where landowners engaged in primarily agricultural
pursuits are affected pursuant to Conditions 2 or 3 above, and water lines are
extended to said landowners’ farms to provide water for
livestock or crops, said water shall be provided by [Authority] at fifty (50%)
percent of the standard water rate.

 

. . . .

 

14. Water Station. [Authority] shall install at [Authority’s] expense,

 [**9]  a metered water station for residents or landowners to purchase or obtain
water. Said water station shall be located at
a location to be agreed upon by [Authority] and the Township within one year of
designation of location.

 

R. at 679a-82a.

Both the Authority and the Levins appealed the board’s decision to the trial
court. The Levins challenged the granting of the conditional use by the board
to the Authority. The Authority appealed the validity of the six (6) conditions outlined above to the trial court. By order of February 8, 1993,
the trial court reversed the decision of the board granting the Authority’s
conditional use application; therefore, the trial court did not address the
Authority’s appeal regarding the validity of the six challenged conditions.
Benner I, 645 A.2d at 395.

Subsequently, the Authority filed two appeals with this court. Id. The first
appeal challenged the reversal by the trial court of the board’s decision
granting the conditional use and the second appeal raised the validity of the
six challenged conditions. Id.

 

As stated previously, this court in Benner
I reversed the trial court’s February 8, 1993 order and remanded the
 [**10]  case to the trial court to determine two specific issues.
645 A.2d at 400. With regard to the Authority’s appeal of the validity of the six imposed
conditions, this court dismissed the appeal without prejudice to appeal the
same issues,
in whole or in part, depending on the determination made by the trial court
pursuant to this court’s remand order. Id.

On remand, the trial court determined that there was substantial evidence to
support the grant of the conditional use application by the board to the
Authority and that the six challenged conditions on the grant of the
conditional use were
reasonable conditions. It is from that January 17, 1995, order that the
Authority and the Levins have filed cross appeals with this court. n3

 

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n3 We note that the principal brief filed on behalf of the Authority in support
of its appeals exceeds the fifty (50) page limit as mandated by Pa.R.A.P. 2135.
In
addition, the Authority’s reply brief filed in response to the board’s
principal brief as appellee in these appeals exceeds the fifteen (15) page
limit. Pa.R.A.P. 2135.

We also note that the board, an appellee in both cross-appeals, has filed a
reply brief to the Authority’s reply brief.
Pa.R.A.P. 2113 provides that an appellant may file a brief in reply to matters
raised by appellee’s brief not previously raised in appellant’s brief. Rule
2113 provides further that the appellee may file a similarly limited brief in
reply to the
response of the appellant to issues presented by a cross appeal if the appellee
has cross-appealed. In these appeals, the board has not filed a cross appeal.
Otherwise, no further briefs may be filed except with leave of court. Pa.R.A.P.
2113.

We remind counsel for the parties herein that
briefs and reproduced records shall conform in all material respects with the
requirements of these rules otherwise they may be suppressed. Pa.R.A.P. 2101.
The Pennsylvania Rules of Appellate Procedure were promulgated to govern
practice and procedure before the appellate courts and non-compliance with the
rules only makes this court’s review of appeals
more difficult.

 

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
 [**11] 

Where the trial court takes no additional evidence subsequent to the board’s
determination, our scope of review is limited to determining whether the board
committed a manifest abuse of discretion or an error of law.
Board of Supervisors, Upper Southampton Township v. Zoning Hearing Board, 124 Pa. Commw. 103, 555 A.2d 256 (Pa. Cmwlth. 1989). A conclusion that the board abused its discretion may be reached only if its
findings are not supported by substantial evidence.
Hoopes v. Zoning Hearing Board of Haverford Township, 134 Pa. Commw. 26, 578 A.2d 63 (Pa. Cmwlth. 1990), petition for allowance of appeal denied,
527 Pa. 655, 593 A.2d 426 (1991).

The issues raised on appeal to this court are:

 

1. Whether the board’s decision granting the conditional use application of the

 [*1069]  Authority is supported by substantial
evidence;2. Whether the conditions imposed by the board on the grant of the Authority’s
conditional use are reasonable;3. Whether the board exceeded its authority by attempting to impose conditions
relating to water withdrawal, allocation and use, which lie within the
exclusive powers of the Susquehanna River Basin Commission and the Pennsylvania
Department of Environmental
Resources
 [**12]  (DER) now known as the Department of Environmental Protection (DEP); n4

 

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n4 Pursuant to Act 18 of 1995, the Conservation and Natural Resources Act, Act
of June 28, 1995, P.L.
   , 71 P.S.
§§ 1340.101 – 1340.1103, the Department of Conservation and Natural Resources was
created and the Department of
Environmental Resources was renamed as the Department of Environmental
Protection effective July 1, 1995.

 

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –

 

4. Whether the board exceeded its authority by purporting to impose conditions
dictating the rates to be charged and the services or improvements to be made
by the Authority in contravention of the Municipality Authorities Act of 1945,
Act of
May 2, 1945, P.L. 382, as amended, 53 P.S.
§§ 301 – 401; and5. Whether board’s decision constitutes an impermissible collateral attack on
the decision of the Susquehanna River Basin Commission by purporting to impose
conditions relating to water withdrawal, allocation and use, where the board
evaluated the same
issues considered and finally
 [**13]  decided by the Commission.

 

I.

An applicant for a conditional use permit has the initial burden of proving
compliance with the specific requirements in the zoning ordinance.
Achey Appeal, 86 Pa. Commw. 385, 484 A.2d 874 (Pa. Cmwlth. 1984), aff’d,
509 Pa. 163, 501 A.2d 249 (1985). After an applicant meets his initial burden, the burden is then upon the
objectors to the conditional use to show a high degree of probability that the
use will adversely
impact on the public interest; the mere possibility of adverse impact is not
enough. Id.

Section 506 of the Benner Township Zoning Ordinance (zoning ordinance) does not
permit any use by right in the C-A District; the only uses are by conditional
use. R. at 14a. The conditional
uses allowed, include, inter alia, essential services. Id.
“Essential Service” is defined in section 202 of the zoning ordinance as:

 

Facilities for the distribution of utility services including gas, electricity,
water, sewerage, telephone and similar services where the facilities are owned
and operated by a municipality, or
municipal authority
 [**14]  or public utility regulated by the Pennsylvania Public utility commission
[sic].

 

R. at 11a.

Section 613(a) of the zoning ordinance, Conditional Uses and Special
Exceptions, provides that the uses specified as conditional within the district
regulations of the zoning ordinance shall be permitted after a
review by the planning commission and approval by the board based on the
determination that the conditional use is appropriate to the specific location
for which it is proposed, consistent with the community development plan, and
in keeping with the purposes and intent of the zoning ordinance. R. at 15a.
Section 613(b) of the zoning ordinance, Criteria for
Conditional Uses or Special Exceptions, sets forth the following nine criteria
to be used as a guide in evaluating a proposed conditional use:

 

1. The presence of adjoining similar uses.

 

2.

 

An adjoining district in which the use is permitted.

 

3.

 

The need for the use in the area
proposed as established by the Comprehensive Plan.

 

4.

 

Sufficient area to effectively screen the conditional use from adjacent
different uses.

 

5.

 

The use will not detract
 [**15]  from the permitted uses of the district.

 

6.

 

Sufficient safeguards such as parking, traffic control, screening, and setbacks
can be implemented to remove any

 [*1070]  potential
adverse influences the use may have on adjoining uses.

 

7.

 

The notification of abutting property owners.

 

8.

 

Uses shall meet the provisions and requirements of other applicable Township
regulations.

 

9.

 

Should the applicant fail to obtain the necessary permits within a one year
period, or having obtained the permit should he fail to
commence work thereunder within such 12 months’ period, it shall be
conclusively presumed that the applicant has waived, withdrawn, or abandoned
his appeal or his application and all provisions, conditional uses and permits
granted to him shall be deemed automatically rescinded by the Board of
Supervisors.

 

Id.

The Levins contend that the grant of the conditional use to the Authority is
not supported by substantial evidence and that the board’s determination that
the Authority has met the requirements for a conditional use is erroneous. The
Levins argue that the nine criteria set forth in section 613(b) of the zoning
 [**16]  ordinance are specific ordinance requirements and that the Authority has
failed to show that it has met five of these
requirements. n5 Therefore, the conditional use should not have been granted to
the Authority by the board.

 

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n5 The Levins contend that the Authority has not met requirements 1, 2, 3, 5,
and 6.

 

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –

In response, the Authority argues that the grant of the conditional use is
supported by substantial evidence.
Further, the Authority contends that the zoning ordinance contains only general
provisions establishing criteria which serve as a guide to the issuance of
conditional uses. Any attempt, the Authority argues, to convert what are
clearly denominated guides into immutable standards clearly would be contrary
to both the plain language and intent of the zoning ordinance.

The Authority
contends that general, non-specific or non-objective requirements in an
ordinance dealing with conditional uses are not usually seen as part of the
threshold persuasion burden and presentation duty of the applicant. In
 [**17]  support of this proposition, the Authority cites
Bureau of Correction v. City of Pittsburgh, 91 Pa. Commw. 293, 496 A.2d 1361 (Pa. Cmwlth. 1985), aff’d,
516 Pa. 75, 532 A.2d 12 (1987);
Bray v. Zoning Board of Adjustment, 48 Pa. Commw. 523, 410 A.2d 909 (Pa. Cmwlth. 1980); and In re:
Appeal of George Baker, 19 Pa. Commw. 163, 339 A.2d 131 (Pa. Cmwlth. 1975). n6

 

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n6 The board, as appellee herein, characterizes the criteria as specific and
argues that the Authority has met all nine of the criteria.

 

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –

A close reading of the cases cited by the
Authority reveals that the above proposition stemmed from attempts to require
applicants to prove conformity with a policy statement rather than specific
requirements. For example, the Authority contends that an ordinance provision
requiring that design be
“integrated and compatible with the environment of adjacent and nearby land uses” was held to not be a specific
standard in Appeal of George Baker.

However, the ordinance
“provision” at issue in Appeal of George Baker was in reality part of the purpose of
 [**18]  the ordinance and was not set out as a separate concrete provision or
criteria. Accordingly, this court held that an applicant must meet reasonably
definite conditions and that it would be manifestly
unfair to require an applicant to prove conformity with a policy statement. In
re:
Appeal of George Baker, 339 A.2d at 135. Any other view, the court stated, would enable the board to assume the
legislative role. Id.

In the present case, the language of the zoning ordinance mandates that the
Authority, as an
applicant for a conditional use, meet nine reasonably definite criteria. The
plain text of section 613(b) of the zoning ordinance states that
“the following criteria shall be used as a guide in evaluating a proposed
conditional use.” R. at 15a. Thereafter, nine definite
criteria are set forth. Clearly, the Authority is not being required to prove
conformity with a general policy statement as in Appeal of George Baker.

The fact that the zoning ordinance utilizes the term
“guide” does not negate the fact that the zoning ordinance contains language

 [*1071]  mandating consideration by the board of
nine definite criteria. As stated above, the zoning ordinance provides nine
criteria
 [**19]  which shall be used as a guide in evaluating a proposed conditional use.
Accordingly, the nine criteria set forth in section 613(b) of the zoning
ordinance are specific standards which the Authority must
establish to satisfy its burden for the grant of a conditional use.

Therefore, we must examine the record to determine whether the grant of the
conditional use by the board to the Authority is supported by substantial
evidence. n7 The Levins argue that the grant of the conditional use is not
supported by substantial evidence because the board erred
in concluding that the Authority met all nine criteria set forth in section
613(b) of the zoning ordinance.

 

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n7 Substantial evidence is relevant evidence as a reasonable mind might accept
to support a conclusion. Bureau of Corrections.

 

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –

First, the Levins argue that the
board’s conclusion that the first requirement was met is clearly erroneous as
there is no evidence whatsoever in the record regarding adjoining similar uses.
The first criterion found in section
 [**20]  613(b)(1) of the zoning ordinance requires that the board consider the
presence of adjoining similar uses.

The Levins point
out that the board found that the use is not inconsistent with adjoining uses
and that this is not what the ordinance requires. The zoning ordinance, the
Levins argue, requires the presence of adjoining similar uses and presence
implies that there actually must be similar uses physically adjoining the
proposed use.

With respect to the first criterion, the board found that the
proposed use was not inconsistent with adjoining uses. The board contends, in
response to the Levins’ arguments, that this was the only fair way to apply
this guideline. The board argues that to accept the Levins’ argument would
result in the absurd holding that a wellfield could not be permitted unless
there was already an existing wellfield on the adjoining
property. We agree and defer to the board’s application of the first
requirement.

Second, the Levins argue that the Authority failed to meet the second criterion
found in section 613(b)(2) of the zoning ordinance requiring an adjoining
district in which the use is permitted. The board found that the same use
category is permitted
 [**21]  as
a conditional use in all adjoining districts. The Levins argue that this
interpretation is clearly an error as it is not what the ordinance requires.
The Levins contend that the language of section 613(b)(2) of the zoning
ordinance can only be construed to be a use permitted by right.

In response, the board argues that
once again an acceptance of the Levins’ argument would result in an absurd
result. The board points out that essential services are permitted in the C-A
District and all adjoining districts only by conditional use. Therefore, the
Levins’ interpretation means that no essential service would be allowed in the
C-A
District because no essential service was permitted by right in adjoining
districts.

Again, we agree with the board’s interpretation of the zoning ordinance. It is
undisputed that the issue herein is the grant of a conditional use not a use
permitted by right. The plain language of the second criterion found in section
613(b)(2) of the zoning ordinance does not restrict the type of use in an
adjoining district to one permitted by right or to conditional uses.

Third, the Levins argue that the third criterion found in section 613(b)(3) of
the zoning ordinance,

 [**22]  requiring the need for the use
in the area as established by the comprehensive plan, was not established. The
board found that the Township’s 1969 comprehensive plan recognizes the
importance of having a reliable and safe source of potable water and the
development of systems to fulfill this need. The board stated that the
comprehensive plan specifically refers to water needs and it does so in the
context of regional facilities.

The Levins argue that the board completely ignored the 1991 comprehensive plan
that was being developed at the very time that numerous hearings before the
board were

 [*1072]  taking place. The Levins contend that the 1991 comprehensive plan makes no
reference to the Authority as a potential source or utility serving the
Township.
Further, regardless of which comprehensive plan was relied upon by the board,
the Levins argue that the Authority failed to establish that there was a need
for the project within Benner Township (Township). We disagree.

It is clear from the board’s decision that it considered the 1969 comprehensive
plan, the plan which was in effect when the Authority’s application for
a conditional use was under consideration by the board. R. at 670a-72a.

 [**23]  In addition, the board considered a study prepared for the Township by the
Local Government Research Corporation which reported that a survey found that
the issue of an adequate water supply was of vital concern to the residents.
R. at 922a-69a. The study recommended and concluded that the water supply must
be an integral part of growth planning of the community. Id. Accordingly, the
board’s conclusion that the Authority established a need for the proposed
conditional use in the area is supported by substantial evidence.

Fourth, the Levins argue that the
Authority failed to satisfy the fifth criterion found in section 613(b)(5) of
the zoning ordinance requiring that the use not detract from the permitted uses
in the district. The Levins contend that the district is actually predominantly
agricultural and there was substantial testimony that the use could have a
deleterious effect on agriculture. Further, the
Levins argue, the project requires the storage of hazardous chemicals such as
chlorine gas that could have an extremely harmful effect on the surrounding
area.

We note that the Levins’ arguments are based on potential problems that may
occur in the future. The board recognized
 [**24]  in its decision the danger of chlorine gas. R. at 676a. As a result, the
board imposed a protective condition requiring the Authority to place an
automated audible chlorine alarm in each building containing chlorine to warn
residents in the case of leakage, and a separate sensory alarm to notify both
the Authority and emergency authorities in the event of leakage. R. at
682a. The Authority has not challenged the imposition of this condition.

As pointed out by the board in its decision, the proposed use is specifically
permitted as an essential service by conditional use; therefore, it is deemed
to be legislatively determined that the use is compatible with the C-A
District. R. at p. 672a. In addition, the board
concluded that the proposed facilities would not detract from other permitted
or actual uses in the C-A District. Id. A review of the record reveals that the
board’s determination is supported by substantial evidence.

Finally, the Levins argue that the Authority itself proposed no safeguards as
required by section
613(b)(6) of the zoning ordinance. Criterion number 6 provides that sufficient
safeguards, such as parking, traffic control screening and setbacks can be
implemented
 [**25]  to remove any potential adverse influences the proposed use may have on
adjoining uses. The Levins argue that this section of the ordinance places the
burden upon the applicant to
insure that its conditional use will have no adverse impact on the surrounding
uses, and the Authority did not even attempt to meet that burden.

The language of criterion number 6 found in section 613(b)(6) of the zoning
ordinance states that safeguards can be implemented. This indicates that
safeguards need not be
implemented if none of the potential adverse influences exist. It is within the
board’s discretion to determine whether safeguards should be implemented from
the evidence presented in support of the application. This discretion may
obviously be carried out through the imposition of reasonable conditions
requiring the applicant to implement needed safeguards.

Accordingly, we conclude that the grant of the conditional
use to the Authority by the board is supported by substantial evidence. See R.
at 17a-310a; 312a-657a. Moreover, the board did not err in concluding that the
Authority satisfied the specific criteria for the grant of the conditional use.

 

II.

 

WHETHER THE CONDITIONAL

 [**26] 
USE WILL ADVERSELY IMPACT ON THE PUBLIC
INTEREST

Having determined that the grant of the conditional use is supported by
substantial

 [*1073]  evidence, we next address the issue of whether the Levins, as objectors, met
their burden of showing, to a high degree of probability that the proposed
conditional use will adversely impact on the health, safety and welfare of the
public.
Achey Appeal, 86 Pa. Commw. 385, 484 A.2d 874 (Pa. Cmwlth. 1984), aff’d,
509 Pa. 163, 501 A.2d 249 (1985). The mere possibility of adverse impact is not enough. Id.

The Levins, as objectors, argue that they met their burden of proving that the
proposed use will adversely
impact on the public interest to a greater degree than other essential
services. The Levins contend that the most obvious adverse impact is that no
one, including the Authority’s own experts, can be sure of the effect of the
operation of the wellfield on the wells of adjacent and nearby property owners,
all of whom are totally dependent upon wells
for their water. Another adverse impact, the Levins contend, is the storage and
use of hazardous chemicals such as chlorine and
fluorides. The Levins argue that these dangers are not merely speculative and
 [**27]  when the record is read as a whole it is clearly established that the danger
is probable.

The board found that the adverse impact to the public interest, raised by the
Levins with respect to the effect of the wellfield on the operation of adjacent
wells was speculative. R. at 677a. With respect to the danger from chemicals,
as discussed above, the board imposed condition number 12 requiring an
automated audible chlorine alarm in each building to warn of any leakage of
chemicals. R. at 682a. In addition, the
board concluded that any potential detriments to the public interest were
adequately addressed by (1) the Authority’s policies and procedures of
operation; (2) state law and regulations; (3) ordinance requirements; and (4)
the conditions attached to the approval of the conditional use. R. at 677a,
679a.

 

A review of the record reveals that the board’s
findings and conclusions with regard to the potential adverse impacts are
supported by substantial evidence. Accordingly, the Levins failed to meet their
burden of proving that the conditional use will adversely impact on the public
interest.

 

III.

 [**28] 
CONDITIONAL USE ARE REASONABLE
 

As pointed out by this
court in Benner I, the board herein, as the governing body, may, n8 pursuant to
section 603(c)(2) n9 of the Pennsylvania Municipalities Planning Code (MPC),
attach such reasonable conditions and safeguards, in addition to those
expressed in the zoning ordinance, as it may deem necessary to implement the
purposes of the
MPC in the zoning ordinance.
Benner I, 645 A.2d at 394.

 

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n8 The governing body within the provisions of the MPC is the township
commissioners or supervisors or borough councilmen.
Commonwealth v. Bucks County, 8 Pa. Commw. 295, 302 A.2d 897 (Pa. Cmwlth. 1973).

n9 53 P.S.
§ 10603(c)(2).

 

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –

 

With respect to the challenged conditions, the Authority first argues that
conditions 1, 2, 3, 4, 5 and 14 exceed the board’s legal authority and are
preempted. Specifically, the Authority argues that conditions
1 through 5 and 14 are preempted by the Susquehanna River Basin Compact n10
(Compact) and that conditions
 [**29]  3, 4, 5, and 14 simultaneously contravene the Municipality Authorities Act of
1945 (MAA).

 

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n10 Act of July 17, 1968, P.L. 368, as amended, 32 P.S.
§§ 820.1 – 820.8. The Compact was entered into by the United States of America
and the States of Maryland, New York and the Commonwealth of Pennsylvania to
preserve the water resources of the Susquehanna River Basin. 32 P.S.
§ 820.1. The Susquehanna River Basin Commission was created by the Compact. Id.

 

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –

Before we address the Authority’s arguments with respect to preemption, we must
first address two separate but related arguments raised by the Levins and the
board. The Levins contend that the Authority’s preemption arguments have been
waived and the Board contends that the Authority has violated Pa.R.A.P. 1921 by
attaching a decision of the
Susquehanna River Basin Commission to its brief.

 

 [*1074] 
1. WAIVER

 

The Levins contend that the Authority cannot now argue that the board’s power
to impose the challenged conditions is preempted by the Compact
 [**30]  and the MAA because it failed to raise these issues below. The Levins argue
that the Authority never raised the issues of preemption in the many
proceedings before the board and, in its original notice of appeal to the trial
court, the Authority raised a preemption issue only as it applied to the
monitoring of wells imposed in condition 1 of the board’s decision. In
response, the Authority argues that (1) issues relating to the board’s power to
impose the particular
conditions were not before the board, since the conditions being appealed had
not yet been imposed; (2) although not required to do so, the Authority
specifically raised in the hearings before the board, the issues of preemption
and the power of the board to impose conditions related to water withdrawals
and system operation; (3) the Authority
preserved the issues of preemption before the trial court and this court in
both the prior and present appeals; and (4) the preemption issues relate to the
subject matter jurisdiction of the board and could not be waived. Moreover, the
Authority argues, this court’s prior ruling in Benner I specifically recognized
the Authority’s right to
raise these issues in this present appeal.

 [**31] 

Pursuant to Pa.R.A.P. 302, issues not raised in the lower court are waived and
cannot be raised for the first time on appeal. Our review of the record reveals
that the Authority properly preserved the preemption issues below; therefore,
the issues have not been waived.

We agree with the
Authority that it had no duty to raise the issues of preemption before the
board when no conditions had yet been imposed; however, the record of the
proceedings before the board reveals that the Susquehanna River Basin
Commission and its effect on the proposed use was discussed. R. at 36a-37a,
196a, 335a-36a, 392a-94a, 628a-29a.
In addition, the Authority raised the issues of preemption in its initial
notice of appeal to the trial court from the board’s decision. R. at 685a-95a.

Generally, the Authority stated in that notice of appeal that the challenged
conditions are beyond the scope of action which may legally be taken by a
governing body
under the applicable statutes and ordinances and that the challenged conditions
are illegal and improper as a matter of law. R. at 690a, 695a. While it is true
that the Authority only specifically mentions the Susquehanna River Basin
Commission and DER, now known
 [**32]  as DEP, with respect to condition 1 in its notice of appeal, we believe the
entire notice of appeal is sufficient to preserve the preemption issues raised
by the Authority in the present appeals. n11 Moreover, the Authority also
preserved the preemption issues in its statement of issues presented to this
court when it first appealed to this court from the trial court’s February 8,
1993 order. Upon determining that the
matter had to be remanded in Benner I, we permitted the Authority to appeal the
same issues, in whole or in part, depending on the determination made by the
trial court on remand.
Benner I, 645 A.2d at 400. Accordingly, we hold that the Authority has not waived its arguments with
respect to preemption
for failure to raise the issues below or on appeal.

 

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n11 Notwithstanding the preservation of the preemption issues before the trial
court, the trial court chose not to address these issues in rendering its two
decisions in this matter.

 

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –

 

2. VIOLATION OF PA.R.A.P. 1921

The board
 [**33] 
contends that the Susquehanna River Basin Commission’s decision which was
attached to the Authority’s principal brief in this matter was not part of the
record considered by either the board or the trial court. Therefore, the
Authority has violated Pa.R.A.P. 1921 by attaching the decision to its brief.

 

Pa.R.A.P. 1921 provides that the original
papers and exhibits filed in the trial court, the transcript of proceedings and
a certified copy of the docket entries prepared by the clerk of the trial court
shall constitute the record on appeal in all cases. This rule codified the
practice that an appellate court may consider only the facts which have been
duly certified
in the record on appeal.
Commonwealth
 [*1075]  v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974).

In this case, the Susquehanna River Basin Commission’s decision was not
available when the board conducted the hearings regarding the Authority’s
conditional use application; therefore it was not introduced as
part of the record before the board. The board’s decision in this matter was
rendered on December 17, 1991. The Susquehanna River Basin Commission’s
decision at issue herein was issued on January 23, 1992. The Susquehanna
 [**34]  River Basin Commission’s decision approves the Authority’s application,
subject to certain conditions, to withdraw 4.7
million gallons per day of ground water from wellfield number 6, the area
covered by the conditional use granted herein, for distribution in the
Authority’s public water supply system.

The Authority contends that this court may consider the Susquehanna River Basin
Commission’s decision regardless of whether it was offered
formally as evidence before the board. The Authority argues that the decision
is not evidence per se but an adjudication by a Federal interstate agency.

The Susquehanna River Basin Commission, pursuant to the Compact, is empowered
as a single administrative agency, to oversee water resources in the
Susquehanna River
Basin and must approve of all the projects affecting those water resources.
Article 3 of the Compact,
§ 3.10, 32 P.S.
§ 820.1. As evidenced by the record herein and the board’s decision, it is clear
that before the Authority may proceed with the proposed conditional use, the
Authority must obtain the necessary approval from the Susquehanna
River Basin Commission. R. at 663a, 674a, 682a; see also
State College Borough Water Authority
 [**35]  v. Board of Supervisors of Halfmoon Township, Center County, PA, 659 A.2d 640, 643 n.4 (Pa. Cmwlth. 1995) (Halfmoon Township) (Benner Township,
like Halfmoon Township, is located in Centre County, Pennsylvania and is
likewise under the Susquehanna River Basin Commission’s auspices).

In
Givnish v. State Board of Funeral Directors, 134 Pa. Commw. 146, 578 A.2d 545 (Pa. Cmwlth. 1990), this court denied,
in part, an application for relief in the nature of a motion to strike
petitioner’s brief because it contained reference to facts not of record in the
case. Specifically, the petitioner in Givnish requested, inter alia, that this
court preclude consideration of an order issued by the Independent Regulatory
Review
Commission and a regulation passed by the State Board of Funeral Directors
subsequent to the decision in the case. This court declined to preclude
consideration based on the proposition that this court may take judicial notice
of the subsequent order and regulation.
Givnish, 134 Pa. Commw. 146, 578 A.2d 545, citing
Edelbrew Brewery, Inc. v. Weiss, 170 Pa. Super. 34, 84 A.2d 371 (1951).

 

Accordingly, we will take judicial notice of the Susquehanna River Basin
Commission’s decision
 [**36]  and order issued on January 17, 1992.

 

3. PREEMPTION – SUSQUEHANNA RIVER
BASIN COMPACT

Relying on this court’s recent decision in Halfmoon Township, the Authority
argues that the challenged conditions to its conditional use are preempted by
the Compact and invade the exclusive regulatory province of the Susquehanna
River Basin Commission.

In Halfmoon Township, the Authority applied for a conditional use to
develop three wells in Halfmoon Township. Hearings were held during which time
the Authority also filed permit applications with DER and the Susquehanna River
Basin Commission for permission to withdraw 3.88 million gallons of water per
day from the three wells. On March 25, 1993, DER gave the
Authority permission to develop the three wells. On May 13, 1993, the
Susquehanna River Basin Commission granted the Authority permission to withdraw
the requested amount of ground water from the three wells. No appeal was taken
from the Commission’s decision.

On August 12, 1993, the board of supervisors of Halfmoon Township approved the
Authority’s conditional use application with ten conditions. The Authority
appealed to

 [*1076]  the trial court from the imposition of conditions
 [**37]  4, and 6 – 10. n12

 

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n12 These conditions provided as follows:

 

4. The Applicant will agree to repair, deepen or replace any well in service in
Halfmoon township as of December
14, 1992, which goes dry or experiences turbidity problems after the Applicant
commences pumping from its well. 

6. Prior to pumping in excess of 1.75 mgd, the Applicant will provide
interconnects at Applicant’s expense to a main line of the following systems: 

a. Upper Halfmoon Water Company,
Inc.; 

b. Sawmill Acres; 

c. Bellefonte Borough. 

7. In the event of dewatering of any of the above systems, after the
interconnect is in place, the Applicant must agree to supply water to the
dewatered system at the system’s cost. 

8. Evidence of interconnect agreements guaranteeing that the Borough of State
College will
supply water to any dewatered supplier at that supplier’s cost. 

9. All interconnects shall be done at the expense of the State College Borough
Water Authority and with pipe of sufficient size to supply the above water
suppliers’ patrons with their daily requirements in the event of dewatering. 

10. In the event that the pumping limit of 1.75
mgd is declared invalid, it is the decision of the Supervisors that the
interconnects be completed prior to any use of the well.

 

Halfmoon Township, 659 A.2d at 641-42.

 

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
 [**38] 

The trial court sustained the Authority’s appeal and struck conditions 4 and
6-10. The trial court decided that the board of supervisors’
“‘imposition of
additional conditions … constituted an impermissible collateral attack’ on
the [Susquehanna River Basin] Commission’s decision and that DER and the
Commission ‘have the exclusive power to allocate water and regulate the use of
water for the public good.’”
Halfmoon Township, 659 A.2d at 642 (citing State College Water Authority v.
Board of Supervisors of Halfmoon Township, Centre County, Pa. (No. 1993-2495,
filed August 19, 1994), slip op. at 4).

The board of supervisors appealed the trial court’s order striking the
challenged conditions to this court. On appeal to this court, the board raised
the issue of whether the state legislature, by
way of DER and the Compact, totally preempted regulation of the use of water
for the public good. After examining the preamble to the Compact, the findings
and declarations of the signatory parties’ legislative bodies, this court
opined that:

Clearly then, as the Authority maintains, Congress and our state legislature
created the Commission in no small part to
combat chaos and fragmentation
 [**39]  in the management of the basin’s water resources. As the Authority also
asserts, the Commission, as the single administrative agency empowered to
oversee these resources, must approve of all the projects affecting them,
subject to certain exceptions not relevant here. Article 3 of the Compact,
§ 3.10. Such a grant of authority vests the
Commission with control over all the water resources within its jurisdiction,
and defeats any notion that local governing bodies, such as the Board in this
case, may attach conditions to a project it has approved.

 

. . . .

Our reading of the Compact as a whole satisfies us the state legislature
indicated an intention that local governing bodies should not supplement the
Commission’s decisions with respect to its authority to manage the basin’s
water resources. No other conclusion is logical where the Compact evinces a
frustration with splintered governmental authority and responsibility, and
where the Commission has been given the power to regulate water withdrawals and
diversions and to determine what areas should be designated as protected or
involved in an emergency situation.
See Article 11 of the Compact.

 

659 A.2d at 644.
 [**40] 

This court pointed out in Halfmoon Township that the Susquehanna River Basin
Commission’s decision approving the Authority’s application for a permit to
withdraw ground-water required that the Authority follow the reporting
requirements set forth
in 18 C.F.R.
§ 803.62 [Ground-water withdrawals] and the conservation requirements enunciated
in 18 C.F.R.
§ 803.63 [Water Conservation requirements] for public water supply utilities.

 [*1077]  Id. We also pointed out that the Susquehanna River Basin Commission reserved
the right, based upon
new findings, to reopen any project docket and make additional orders that may
be necessary to mitigate or avoid adverse impacts or otherwise protect the
public health, safety or welfare. Id. Thus, we stated that this provision for
relief by the Susquehanna River Basin Commission afforded any residents of
Halfmoon Township or any township or
borough with a public water system who may encounter problems because of the
three new wells a forum for protection and remedy from such problems. Id.

Accordingly, we held that conditions placed on the grant of a conditional use
application by a local governing body subject to the Susquehanna River
Basin
 [**41]  Commission’s authority, which conditions interfere with the Susquehanna River
Basin Commission’s power to regulate area water resources, are preempted.
Id. at 645. A review of the challenged conditions in Halfmoon Township in light of this
holding resulted in this court affirming the trial court’s order striking the
challenged conditions. Id. We determined that the conditions imposed by the
board were all commendable efforts to protect against future interference with
wells in Halfmoon Township or with certain public water systems. Id.

In the present case, the Authority argues that the conditions it is
challenging, imposed on the grant of its conditional use application, are
similar to the conditions that this court found were preempted by the Compact
in Halfmoon Township. The Authority contends that the six challenged conditions
all interfere with the Susquehanna River Basin Commission’s authority to
regulate area water resources. We agree.

In its decision approving the Authority’s application to withdraw groundwater
in the Township, the
Susquehanna River Basin Commission specifically found that:

No adverse impacts on other area ground-water withdrawals
 [**42]  are anticipated. With the conditions included below, the project does not
conflict with nor adversely affect the Comprehensive Plan, is physically
feasible, and does not adversely influence the present or future use and
development of the water
resources of the basin.

 

Brief of State College Water Authority, Appendix A – Certified Copy of Decision
of the Susquehanna River Basin Commission at 3.

The conditions imposed by the Susquehanna River Basin Commission on the
approval of the Authority’s application to withdraw ground-water in the
Township provide that:

 

1. The [Authority]
shall comply with the [Susquehanna River Basin Commission’s] ground-water
reporting and conservation requirements as per Commission regulations [18
C.F.R.
§ 803.62 and
§ 803.63(a)], respectively.2. Should the … monitoring data show a measurable impact on Benner Spring,
the [Susquehanna River Basin] Commission
will consider whether to impose restrictions on the quantity of water that may
be withdrawn from Wellfield No. 6. Any restrictions imposed by the [Susquehanna
River Basin] Commission will be based on a consideration of all competing uses.3. This action does
 [**43]  not obviate the need for the [Authority] to obtain any other federal, state,
or
local approvals required for the project.4. The [Susquehanna River Basin] Commission reserves the right, based upon new
findings, to reopen any project docket and make additional orders that may be
necessary to mitigate or avoid adverse impacts or otherwise to protect the
public health, safety, or welfare.

 

Id.

Conditions 1, 2, 3, 4, and 14 imposed by the board on the grant of the
conditional use all require the Authority to monitor surrounding wells, reduce
draw if the monitoring so requires, provide water in the event of well failure,
and install a metered water station. Condition 5 is contingent on
conditions 2 and 3.

However, the requirements of these challenged conditions are all governed by
the Susquehanna River Basin Commission’s regulations found in Chapter 18 of the
Code of Federal Regulations. The standards for

 [*1078]  ground-water withdrawal, 18 C.F.R.
§ 803.43, provide that after obtaining approval for the withdrawal, the
sponsor shall also comply with metering, monitoring and reporting requirements
as set forth in 18 C.F.R.
§ 803.43(a)(3). n13

 

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n13 On June 15, 1995, effective May 11, 1995, the provisions of 18 C.F.R.
§ 803.62 and 18 C.F.R.
§ 803.63 were
removed and are now found at 18 C.F.R.
§ 803.43 [Standards for ground-water withdrawals] and 18 C.F.R.
§ 804.20 [Water Conservation Requirements]. See Susquehanna River Basin
Commission,
60 Fed. Reg. 31,391 (1995).

 

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
 [**44] 

The metering requirement provides that approved
projects shall meter all approved ground-water withdrawals and that the meters
shall be accurate to within 5 percent of the actual flow. 18 C.F.R.
§ 803.43(c). The monitoring and reporting requirements provide for the
monitoring and periodic reporting of water levels, well production, and
ground-water quality of all
approved ground-water withdrawals. 18 C.F.R.
§ 803.43(d)(1).

For example, the regulations provide that ground-water levels shall be measured
weekly in all approved production wells and reported to the Susquehanna River
Basin Commission annually. 18 C.F.R.
§ 803.43(d)(1)(i). In addition, 18 C.F.R.
§ 804.20 provides that when circumstances warrant, a public water supplier
shall, inter alia, install meters for all users and encourage water
conservation.

Accordingly, the requirements imposed by the six conditions challenged herein
on the area’s water resources are
subject to regulation by the Susquehanna River Basin Commission; therefore, the
imposition of the conditions by the board is preempted by the Compact and the
promulgated regulations. Halfmoon Township.

As recognized by this court in Halfmoon Township,

 [**45]  to permit the imposition of the conditions by the board in its desire to
protect the Township’s residents, would result
in a splintering of authority and responsibility, the very mischief the
Susquehanna River Basin Commission was designed to remedy. Id. at 645. This
would be particularly true if the Susquehanna River Basin Commission later
decides to reopen the project docket and make additional orders to mitigate or
avoid adverse impacts or otherwise to protect the public
health, safety, or welfare. See Brief of State College Water Authority,
Appendix A – Certified Copy of Decision of the Susquehanna River Basin
Commission at 3.

The Levins and the board argue that the Authority agreed to the imposition of
the conditions on the record; therefore, the imposition of the conditions must
be upheld by this court. The Levins argue that the
Authority specifically agreed to conditions 1, 3, and 4 and implicitly agreed
to condition 2. The board argues that the Authority agreed to all six
challenged conditions through the testimony of Paul Fisher, the manager of the
Authority, and Dr. Richard Parizek. n14

 

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n14 We note that the board is relying on the testimony of Dr.
Parizek to support its argument that the Authority agreed to the imposition of
the six challenged conditions. It is clear from the record that Dr. Parizek
testified before the board as a witness for the objectors, the Levins. While
the board on appeal herein describes Dr. Parizek as an employee and consultant
of the Authority, the Authority argues that his testimony in no
way binds the Authority because Dr. Parizek was called as an expert witness for
the objectors.

We agree with the Authority. Therefore, Dr. Parizek’s testimony does not bind
the Authority with respect to an agreement regarding the imposition of any of
the challenged conditions.

In addition, we will not affirm the imposition of condition 2 on the basis that
the Authority implicitly
agreed to this condition on the record as argued by the Levins.

 

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
 [**46] 

The trial court upheld the imposition of these conditions on the basis that the
Authority agreed to their imposition. The Authority argues that it did not
agree to the imposition of the challenged conditions and that no legal
authority exists to support the argument that a preempted condition can be
imposed
by agreement.

To support their arguments, the Levins and the board rely on this court’s
decision in
Clinton County Solid Waste Authority v. Wayne Township, 164 Pa. Commw. 632, 643 A.2d 1162 (Pa. Cmwlth. 1994). In Clinton County, this court reviewed the imposition of
certain conditions on the grant of a conditional use to operate a demolition
waste landfill with the principle in mind that any conditions which

 [*1079]  the Wayne Township Board of Supervisors wished to impose upon the conditional
use pursuant to its authority under section 603(c)(2) of the MPC which were not
regulated by the
applicable laws and regulations of the DER must be upheld if the conditions
were reasonably related to the health, safety or welfare of the public.
Clinton County, 643 A.2d at 1169. The Wayne Township Zoning Ordinance required that sanitary landfills, in
districts where authorized as a conditional use, shall
 [**47]  be regulated by the
applicable laws of the DER. Id. at 1164 n.2.

Thereafter, we affirmed the imposition of condition 14 requiring the
installation of a fire hydrant on the basis that the Clinton County Solid Waste
Authority had agreed to the condition and that the condition was not
inconsistent with DER regulations. Id. at 1172. Further, we affirmed the
imposition of
condition 1 precluding the use of a public road on the basis that the Clinton
County Solid Waste Authority had agreed to the condition; however, there was no
DER regulation governing the requirements of that condition. Id. at 1169.

The Levins and the board rely on this court’s affirmance of the conditions in
Clinton County on the basis of agreement as a
steadfast rule that any time an applicant agrees to the imposition of a
condition then that applicant is bound by that agreement. However, the Levins
and the board ignore the fact that this court first reviewed the conditions at
issue in Clinton County to determine whether the conditions were inconsistent
with DER laws and regulations. When the conditions were, in fact, inconsistent,
the issue of whether the
Clinton County Solid Waste Authority
 [**48]  agreed to the condition at issue never arose. Clinton County.

In the present case, we have already determined, after a review of the
applicable federal regulations, that the six challenged conditions are
preempted by the Compact and the Susquehanna River Basin Commission’s
regulations. As stated
above, to permit the imposition of the conditions by the board would result in
a splintering of authority and responsibility, the very mischief the
Susquehanna River Basin Commission was designed to remedy. To now permit the
imposition of the challenged conditions solely on the basis that the Authority
agreed would defeat this purpose.

Accordingly, we hold that the trial court erred
in upholding the imposition by the board of the six challenged conditions on
the grant of the conditional use to the Authority. n15 In addition, as this
court hastened to add in Halfmoon Township,
“this opinion in no way serves as insulation for the Authority from liability
for problems it may cause by the
pumping of its wells.”
Halfmoon Township, 659 A.2d at 645.

 

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n15 Because we have held that the principle of preemption applies, we need not
reach the remaining issues raised on appeal.

 

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
 [**49] 

 

JAMES R. KELLEY, Judge

 

ORDER

 

NOW, this 28th day of December, 1995, the order of the Court of
Common Pleas of Centre County, dated January 17, 1995, at Nos. 92-40 and 92-147
is hereby:

1. Affirmed with respect to the order’s affirmance of the granting of the
conditional use application by the Board of Supervisors of Benner Township to
the State College Borough Water Authority; and

 

2. Reversed with respect to the
order’s affirmance of conditions 1, 2, 3, 4, 5, and 14 imposed by the Board of
Supervisors of Benner Township upon the conditional use application.

 

JAMES R. KELLEY, Judge

http://actionpa.org/fluoride/lawsandcourts/pa-benner.html