Asphalt plant appeal remanded to zoning hearing board
The long running appeal of a proposed asphalt plant along the banks of Slippery Rock Creek will continue following a recent Common Pleas Court ruling.
A June 4 ruling in the appeal several residents filed in 2022 against the proposed plant in Slippery Rock Township remands the case to the township zoning hearing board. The residents filed their first appeal in 2021.
The appellants — residents Paul Boas, Maria Carnahan and Christopher Coleman — are appealing the board’s approval of a land use plan for a cold mix asphalt plant proposed by Heilman Pavement Specialties.
A supplemental findings of fact the board filed in April 2024 in response to a May 2023 opinion was vacated and the matters discussed in the opinion were remanded to the board in a June 4 opinion from President Judge S. Michael Yeager. The matters remanded to the board focus on odors from the proposed plant.
“In my opinion they’ll never be able to meet their burden and they will lose,” Boas said Tuesday. “I can’t in my worst nightmares imagine an asphalt plant on the bank of Slippery Rock Creek.”
The discussion included a review of a previous opinion from Yeager, which said section 406D of the township zoning ordinance, which permits sources in an industrial district to emit malodors that are detectable outside of the property where the source is located, is preempted by the federal Clean Air Act.
The board’s findings of fact cites section 406D, and the appellants testified that malodors from Heilman’s plant in Sarver are detectable outside the plant. An air quality expert acknowledged malodors would be emitted from the proposed Slippery Rock plant, according to the opinion.
The court remanded for the board to clarify that it understood malodors were not permitted to cross property lines in the industrial district and to weigh the evidence and credibility of the appellants and air quality expert to determine if Heilman meets the 406D standards.
Also remanded to the board was the question of whether Heilman met standards of section 308.11 of the ordinance, which states a heavy manufacturing facility should be located where objectionable gases, fumes, smoke or dust will not be objectionable to existing facilities or must be controlled by special equipment.
The board’s response in a supplemental findings of fact that the word “objectionable” is vague and must be interpreted in favor of the landowner is an attempt to “invalidate its own ordinance,” according to the opinion.
In a previous opinion, the court said Section 308.11 was drafted to protect nearby properties from malodors in areas in or abutting the industrial district, even though the ordinance ostensibly allows gasses to cross property lines.
If the board is correct that the exception in section 406D remain valid, its interpretation of the ordinance shows a fundamental misunderstanding of its terms, according to the opinion.
Standards in the ordinance are restrictions on property uses designed to provide protections to other township residents, but the exception for malodors in section 406D removes protection from malodors for properties in the industrial district, according to the opinion.
“The exception does not put property owners in residential or other districts on notice that abutting property owners in the industrial district may permit malodorous gas or matter to cross into their residential properties.
“It would be absurd to read the ordinance to suggest that a source could emit malodors that extend for miles into residential, rural conservation, commercial and other districts simply because the source itself is located in the industrial district, all the while restricting sources in all other districts from doing the same,” according to the opinion.
The Carnahan residence is in the rural conservation district and is entitled to every protection afforded to properties in the district, including protection from neighboring properties emitting malodors that cross onto their property, according to the opinion.
The opinion vacates the board’s supplemental finding of facts and once again remands the matter to the board to comply with the May 2023 opinion and order, and this opinion and order, by addressing and weighing all testimony and evidence to determine if Heilman has satisfied Section 308.11 and standards in section 406D.
Messages for comment left for attorneys for the township and Heilman were not returned.
