Coolbaugh ZHB Decision Denying Warehouse Application is Reversed on Appeal

APR 6 2023, 5:30pm

Evergreen Farms at Coolbaugh Township is a diverse-use, multi-parcel land development proposal. The warehouse at issue here is on the parcel marked “4” on this map.

STROUDSBURG – The developer of a proposed warehouse has won an appeal of the Coolbaugh Township Zoning Hearing Board’s refusal to grant a special exception.

The property is in the C-3 Commercial Village zoning district. A warehouse can be constructed as a matter of right on property in that zone, subject to a “special exception” granted by the local Zoning Hearing Board (ZHB). Courts will often say that a special exception is neither special, nor an exception – it is a permitted use that can be subject to unique conditions and provisos under the “special exception” rules of the local zoning ordinance.

The proposed project, which the developer calls Evergreen Farms at Coolbaugh Township, is a 426,000-square-foot building, with 98 semi-trailer parking spaces and 248 employee auto spaces. The Zoning Hearing Board held four days of hearings over a span of four months, from June until September 2022. A fifth day in October was held for the vote on the application.

Coolbaugh ZHB announcing the decision to deny a special exception permit. (BTN Photo)

During the course of the hearings, the developer put on testimony and evidence of various aspects of the project. All of its witnesses agreed that the project was a “warehouse.” What they were unable to say was precisely the material to be warehoused and the overall infrastructure demands from the facility, since no tenant has been identified.

Under the circumstances, for the purposes of analysis, the applicant’s experts used the warehouse category with the most intensive use. 

There were a number of objectors who joined as parties to the ZHB proceedings. The board entertained from them a plethora of evidence and testimony regarding a wide variety of projected adverse environmental, economic, and community impacts the proposal would have on the township infrastructure and residents, as well as on its flora, fauna, and waterways.

The objectors to the warehouse application (LtoR) resident Bill Leonard, Supervisor Lynn Kelly, resident Rick Holmes, and attorneys Abigail Jones and Emma Best, with Penn Future. (BTN PHOTO)

Over the course of the lengthy hearings, the ZHB board had to replace its solicitor due to a conflict and lost a member due to resignation. When the board met in October 2022, to render its decision, they effectively dismissed most of the objectors’ evidence as insufficient to stop the construction.

Instead, they focused on concern about how the building would actually be used. Several objectiors had cautioned that the zoning does not allow for a “distribution center/truck terminal.”  At the October session, the board denied the permit solely because they were not convinced the developer presented sufficient evidence to prove the project was a warehouse.

The zoning ordinance recites a number of factors that need to be considered in granting a special exception. The developer has the burden to establish it satisfies those criteria. In the written decision following the October meeting, the ZHB carefully and expressly found that the developer had met its burden and satisfactorily proven that the project satisfies every one of the listed criteria.

Specifically, the ZHB said the applicant proved, among other things, their warehouse development “would comply with all local, state and federal stormwater control requirements;” satisfied “all dimensional and bulk standard requirements of the C-3 zoning district for a warehouse use;” is consistent with the Coolbaugh Township Comprehensive; is suitable for the particular property; that any adverse effects asserted by objectors would be “eliminated or substantially mitigated” through approval conditions; and that various methods were available to eliminate or reduce adverse effects resulting stormwater runoff and the use of salt in the parking lots to an acceptable level.

The applicants (center), their engineer (left), and their attorney participate in the hearings on their request for permission to construct a warehouse in Coolbaugh Township.

Essentially, the ZHB thus rejected every argument by the various objectors. Instead, the ZHB ruled that the applicant “failed to present evidence that its proposed use of the Property was a ‘warehouse’ as defined in the Zoning Ordinance.” It was this finding that the court was asked to review.

In reviewing the warehouse issue, the court appeared somewhat perplexed over the ZHB assertion. The judge’s opinion noted numerous, uncontradicted hearing testimony and documents affirming the proposal before the board was indeed a warehouse. The judge could decide the issue only on the record developed before the ZHB. On that record, the court said, Evergreen Farms “has provided sufficient evidence that the proposed use will be a “warehouse” from the plans submitted and testimony provided.  .  .  . The representation the building will be used as a “warehouse” as defined by the Zoning Ordinance is sufficient.”

Accordingly, the court reversed the ZHB. However, the judge said it remained unclear “whether or not the use could also qualify as a ‘distribution center/truck terminal’ as contemplated by the ZHB members in their discussion, but not ultimately addressed in their written decision.” The case was therefore sent back to the ZHB for it to explore that issue through additional evidence if it decides it is warranted.

The judge also said that the ZHB should also use the remand to develop and impose any “reasonable and necessary” conditions to be imposed on the project in order to provide protection to the various environmental and community interests implicated by the proposed warehouse.