To paraphrase a line from a commenter on the Times-Tribune, this is a frivolous petition trying to stop a legitimate zoning challenge. Why is KSL resorting to such tactics if they have a defensible zoning position? One could infer that posting such a preposterous bond is intended to take power away from the people, especially since the permit is still in the DEP review period so the zoning appeal is not causing a delay and the damages they are claiming are for the design work done for the permit, which would not be lost IF they got the permit. The idea that KSL is going to lose money because citizens with standing are exercising their right to appeal the zoning officer’s opinion is ludicrous and this petition is, quite frankly, dangerous to democracy.
Landfill owners hit Friends of Lackawanna with petition for $1.2 milllion bond
BRENDAN GIBBONS, STAFF WRITER
Published: March 11, 2015
Keystone Sanitary Landfill’s first legal strike against Friends of Lackawanna threatens to hit their weakest spot: their pocketbook.
Calling the group’s appeal under Dunmore’s zoning ordinance “frivolous,” attorneys representing the landfill owned by Dunmore businessman Louis DeNaples filed a petition late February in Lackawanna County Court to force Friends of Lackawanna to post a $1.2 million bond within five days of a judge’s order or give up their appeal.
Judge John L. Braxton did not rule Tuesday on the petition for bond after the five-hour hearing.
This appeal is the opposition group’s first legal challenge against the landfill’s proposed roughly 50-year upward expansion. Members challenged Dunmore zoning officer Joseph Lorince’s preliminary opinion that the borough’s height ordinance does not apply to the landfill. Dunmore’s zoning hearing board has not yet addressed the issue.
Keystone’s attorney Marc Jonas with Eastburn & Gray P.C., of Blue Bell, described the appeal as simply, “We just don’t like it and we want to stop it.” That doesn’t provide standing to appeal, he said.
Friends of Lackawanna’s attorney, Jordan Yeager, of Curtin & Heefner LLP, said the question is actually whether the section of state law allowing the bond in a frivolous appeal applies to the landfill expansion and whether the landfill can prove the appeal’s chance of success is “slight,” making it frivolous.
Mr. Yeager accused Keystone’s attorneys of trying to “distract the court” by casting doubt on whether the three members who appealed can see or smell the landfill from their homes.
“We have a very strong case that expansion is contrary to the black-letter zoning ordinance,” Mr. Yeager said. “The only way to make that case is the zoning appeal.”
Mr. Jonas, his colleague Michael Peters and Scranton attorney Jeffrey Belardi called landfill contractors from CECO Associates Inc. and Hershey-based ARM Group Inc. to the witness stand to prove the landfill’s visual impacts will be minor and the damages caused by delaying the expansion have already been significant.
In February, ARM Group surveyor Robert Kitchen drove to the homes of Friends of Lackawanna members Joseph James and Mari May, Edward and Beverly Mizanty, and Katharine and Todd Spanish to take photos from a perspective facing the landfill. The three families live in the Swinick development. The landfill is not visible in Mr. Kitchen’s photos outside their homes.
Mr. Kitchen then made photo illustrations of the post-expansion landfill that show a greenish mound barely peeking over rooftops and trees, except at the Spanish residence, where he argued neighbors’ trees prevent any view of the landfill now or after expansion.
The renderings came in the context of a broader line-of-site study, in which ARM Group’s civil engineers drew a 3-mile radius around the landfill’s future peak, then calculated where the landfill would be visible in the future. They found the expansion would be visible from 3.3 percent more land area in that radius, and 1.2 percent more of the population would see it.
On the witness stand, Ms. May agreed she couldn’t see the landfill from the perspective in the photo but said she can see it from her kitchen table, dining room, bedroom, bathroom and backyard.
When she mentioned smelling the landfill, Mr. Jonas objected, arguing Ms. May lives closer to a Waste Management transfer station serving the landfill than the landfill itself, and she can’t competently smell the difference among the transfer station, the landfill and neighbors’ garbage cans.
“We’re all competent to breathe in through our nose and distinguish between the odor of garbage and something else,” Mr. Yeager said.
Judge Braxton acknowledged Mr. Jonas’s point. “I’m not going to pretend she doesn’t live closer to the transfer facility,” he said.
Beverly Mizanty, another resident in the appeal, was also questioned on smell and sight impacts. Mr. Yeager presented a photo from Mrs. Mizanty’s back deck clearly showing the landfill.
As their only non-engineer witness, Keystone’s attorneys called landfill clerk Jackie Turnbull to prove the landfill has already incurred $1.2 million in damages from the delay. As evidence, they presented a series of check stubs and invoices to various contractors.
Mr. Yeager pointed out that the charges were for preparing the landfill’s permit application to the Department of Environmental Protection and had nothing to do with the residents’ appeal. “That’s not delay damages,” he said.
Despite the preemptive strike by the landfill that could derail it at the outset, Friends of Lackawanna’s appeal is still young. Dunmore’s zoning hearing board scheduled three public hearings at 6:30 p.m. March 19, March 26 and April 2, all Thursdays.