FOL Gets Day In Court over Expansion Plans

Three years later (!!!), we are finally getting closer to deciding the merits of our Zoning case instead of the non stop procedural issues the Landfill has focused on...

This article in the Scranton Times summarizes the oral arguments held on 9/17/18 in Lackawanna County:

SCRANTON — Lawyers for Keystone Sanitary Landfill and neighbors opposing its proposed expansion argued Monday over whether Dunmore’s zoning ordinance can limit the future height of a new mountain of trash.

A lawyer for Friends of Lackawanna, the chief expansion opposition group, and six landfill neighbors told a visiting judge the ordinance’s 50-foot height limit applies to structures in manufacturing districts like the landfill.

Keystone’s lawyers say the height limit applies to buildings, not structures, and the borough’s zoning ordinance distinguishes between the two. The zoning board sided with Keystone in September 2015. The board’s lawyer, attorney Carl J. Greco, showed up Monday in Lackawanna County Court to back Keystone’s contention that its expansion is not a building.

“We agree with that position,” said Greco, who sat with Keystone’s lawyers, attorneys Jeffrey J. Belardi, David R. Overstreet and Christopher R. Nestor.

Keystone proposes an expansion that will allow it to remain open 46 more years. Initially, the landfill asked the state Department of Environmental Protection to allow burying trash 165 feet higher in the expansion area than on existing permitted areas. Keystone has since amended its application to eliminate the increased height. The zoning board ruling remains based on the original application.

Friends of Lackawanna and landfill neighbors Joseph and Mari May, Edward and Beverly Mizanty and Todd and Katharine Spanish appealed the zoning board ruling. Senior Judge Leonard Zito, the out-of-town judge assigned to the case after every county judge declined to preside, ruled the group and neighbors couldn’t appeal because they lack standing, meaning the landfill wouldn’t affect them. They appealed to Commonwealth Court, which ruled in May they have standing and sent the case back to Zito.

Attorney Jordan B. Yeager, the Friends of Lackawanna and neighbors’ lawyer, told Zito the Keystone case matches a January 2014 Commonwealth Court ruling on a landfill proposed in Mercer County. In that case, the Commonwealth Court found a township zoning ordinance limits structures to 40 feet high and the definition of structures includes landfills.

In ruling against Tri-County Landfill Inc.’s plans for a 99-acre landfill, township zoners ruled the landfill’s soil, multiple liners, gravel, stone and trash constitute a structure that must meet the height limit.

In Dunmore’s ordinance, the definition of a structure says, “structures include buildings, ...,” and buildings in an M-1 manufacturing zone like the one that includes Keystone can stand no taller than 50 feet, though opponents acknowledge the landfill has long piled trash much higher. The ordinance does not specifically exempt Keystone from the height requirement, Yeager said.

Yes it does, but in a different way, argued Overstreet, one of Keystone’s lawyers.

Relying on the zoning board’s argument, Overstreet said the height limit applies only to buildings because of what the zoning ordinance says. While the ordinance’s definition of structures includes buildings, the ordinance also defines buildings as “any structure having a roof supported by columns or walls, used or intended to be used for the shelter or enclosure of persons, animals or property.” The zoning ordinance specifically lists height limits for buildings, not structures, according to a copy of the ordinance.

“You can see clearly the landfill isn’t a building,” Overstreet said. “A landfill is not a building and the height limits apply only to buildings.”

Zito gave Yeager 10 days to file a written response to Overstreet’s arguments and Overstreet another 10 days after that to respond to Yeager.

DEP continues to review the landfill’s expansion application.

Contact the writer:;