Court’s zoning decision appealed

By Mary Grzebieniak

Residents had opposed the change.

MERCER, Pa. — The fate of a proposed storage facility and grain elevator in Wilmington Township is now in the hands of Commonwealth Court.

Atty. Andrew Menchyk Jr. of Butler filed an appeal Wednesday with the court of a decision made last month by Judge John Reed of Mercer County Common Pleas Court that upheld, on procedural grounds, the Aug. 15, 2007, zoning change of 56 acres on Auction Road.

The change would allow Deerfield Farm Services Inc. to build a storage facility and grain elevator on part of the acreage.

Residents living near the site opposed the change, citing traffic problems, noise, and possible contamination of a nearby creek. The appeal was filed on behalf of David Batley, one of the residents.

Judge Reed ruled on May 22 that the Wilmington Township Zoning Hearing Board’s failure to render a decision within a 45-day time period after a Nov. 1, 2007, appeal hearing before the board resulted in the panel upholding the validity of the zoning change.

The zoning hearing board had declined to make a decision on the merits of the case. Instead, the two members who heard the appeal stated that Batley was entitled to have the case heard by three board members.

Since one member had excused himself from the hearing, the board maintained that the township supervisors should have named an alternate zoning board member to hear the case. The board sent the matter back to the supervisors.

That action, Judge Reed ruled, actually resulted in a denial of the appeal under the law which states that a challenge is deemed denied when “the zoning hearing board … fails to act on the request 45 days after the close of the last hearing on the request …”

The judge also ruled that Batley failed to appeal the denial in the 30 days provided by law which would have been Jan. 28, 2008. Batley filed his notice of appeal Jan. 30.

The case is expected to be scheduled for a hearing in Commonwealth Court sometime in the fall.