Short one member, board delays decision

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A board member had to step down because he opposed the zone change.

By MARY GRZEBIENIAK

VINDICATOR CORRESPONDENT

NEW WILMINGTON, Pa. — A decision on rezoning a parcel of land on Auction Road has been delayed because the full three-member Zoning Hearing Board did not hear the zoning appeal.

The Wilmington Township Zoning Hearing Board in Mercer County declined late last week to make a decision in the appeal of a zone change of some 50 acres from residential to industrial/business and instead sent it back to township supervisors, ordering them to appoint an alternate zoning board member to hear the appeal.

According to the decision, the failure to appoint an alternate member "was an abuse of discretion on the part of the Board of Supervisors."

It went on to state the situation denied due process to those appealing because there was no third "swing vote" in the event of a tie, and that those appealing had to persuade "100 percent of the board to be successful versus 66 percent when three members are present."

Supervisors must now appoint an alternate to the zoning appeals board to replace member Jack Hanes, who had excused himself from a Nov. 1 hearing because he had signed a petition opposing the zoning change.

The two members who heard the appeal and decided to send the matter back to supervisors are Eileen Hendrickson and Mark Chase. Atty. Joseph Kearney is zoning board solicitor.

The supervisors may appoint an alternate member of the board or they could allow a vacancy board to do it. Kearney said the township, however, does not have a vacancy board.

Township Solicitor Raymond Bogaty said he is still researching the situation and has not yet determined what advice he will give supervisors. He said he expects to know more later this week and possibly in time for the supervisors' regular meeting at 7:30 p.m. Wednesday.

Supervisors had approved the rezoning of the acreage Aug. 15. Atty. Bruno Muscatello of Butler filed the appeal on behalf of David Batley of Auction Road.

Batley and many residents of the area, including the Winfield Commons condominiums across the street from the property, opposed the zone change. They based their appeal on several factors, including their contention the supervisors had erred in approving the change by failing to consult a third-party expert to assess environmental impact.

The disputed zone change would allow Deerfield Farm Services Inc. to build a storage facility and grain elevator on 25 acres on Auction Road. Seven grain bins, seven silos and fertilizer and chemical storage also would be part of the facility.

The business already has operated on leased property on Pa. Route 208 here since 2003. Residents testifying at the Nov. 1 hearing had objected to the potential traffic, noise and odors as well as possible groundwater contamination and that the grain bins would be visible from residential areas.

Sunday, December 9, 2007