Airport opponents win court victory
POTTSVILLE - Opponents of a cargo airport proposed for the Hazleton area won a significant victory Thursday as a Schuylkill County judge denied a special exception for the partnership that wants to construct the facility.
In a 28-page opinion and order, Judge James P. Goodman ruled that Gladstone Partners LP, Pittsburgh, failed to show it had sufficient off-street parking, proper access and a state aviation license for the airport.
All three are necessary for the approval, and the Schuylkill County Zoning Hearing Board erred when it granted the special exception on Aug. 3, 2012, without any of them, Goodman decided.
"The board abused its discretion and erroneously granted the special exception," Goodman wrote.
The decision represents a victory for East Union Township and Service Electric Cable Vision Inc., which had appealed the board's decision and sought to block the airport.
Goodman did not go further in his ruling, leaving unanswered the question of whether the board had the right to hear the case.
However, his ruling deals a serious, perhaps fatal, blow to the plans for the airport Gladstone wants to build on a 4,300-acre unimproved property in East Union and Kline townships in Schuylkill County and Hazle Township in Luzerne County. The property borders Humboldt Industrial Park and Interstate 81.
Some citizens and officials in East Union Township have opposed the proposal, citing concerns about noise, property values and traffic.
On June 11, 2009, during the controversy over the proposal, East Union enacted a zoning ordinance and has contended Gladstone must seek zoning approval from it instead of the county.
In his opinion, Goodman said Gladstone had the burden of showing it had complied with the county zoning ordinance's requirements for a special exception.
"(It) must prove not only that the proposed use was of a type permitted by special exception but also that the proposed use complied with the other applicable requirements of the ordinance which expressly govern such a grant," Goodman wrote.
Gladstone produced no evidence that it provided either a sufficient number of off-street parking spaces for the airport or for adequate entry and exit to the property itself, Goodman wrote.
"Gladstone presented plans which depict the layout of the runway but no plans that depict any parking or any ingress or egress," according to the judge.
Goodman also wrote that Gladstone's plans contain no indication of any access except for a minor road, and that is not permitted under the ordinance.
Furthermore, Gladstone's promises that it will supply adequate off-street parking, entry and exit, are insufficient to satisfy the ordinance, and are not made sufficient by the board conditioning its approval requiring primary entry and exit for all vehicle traffic to and from the property to be directly from Interstate 81, according to Goodman.
"An applicant must show at the time of the application compliance with all of the zoning requirements," he wrote. "The grant of a special exception cannot be supported by a promise to comply with the ordinance."
Additionally, Gladstone failed to obtain a license from the state Department of Transportation's Bureau of Aviation before filing for the special exception, and Goodman ruled that that oversight also requires rejection of the special exception.
It is irrelevant that the Federal Aviation Administration has given a conditional no objection to letter for the airport, Goodman wrote. That letter deals only with reservation of air space and explicitly does not pre-empt any state regulation, according to the judge.
"We find that Gladstone was required to be licensed by PennDOT" before applying for the special exception, Goodman wrote.
Those failures are sufficient to require denial of the special exception, according to Goodman.
Specifically, he said no discussion was required of the pending ordinance doctrine, which could force Gladstone to go before East Union zoners instead of the county board because township's ordinance was under actual consideration when the partnership submitted its application.
"We need not address any of the other issues presented," Goodman wrote.
In a separate case, the Commonwealth Court upheld the legality of East Union's zoning ordinance.