Ethanol plant battle back in Pa. courtroom

October 25, 2005|by DON AINES

CHAMBERSBURG, Pa. - Both sides in the Penn-Mar Ethanol case were in Franklin County Court on Monday to argue whether the Greene Township Zoning Hearing board erred in its decision that the proposed ethanol plant is a permitted use under the township's ordinance.

Judge Richard J. Walsh heard oral arguments from attorneys for Penn-Mar Ethanol, the York, Pa., partnership proposing to build the $80 million plant in the Cumberland Valley Business Park, and Citizens for a Quality Environment, which is appealing the zoning board's decision and has gotten a court stay preventing further township review of the plan until the appeal is settled.

"The court has two threshold questions it must decide - whether he should hear additional evidence ... and whether it is a permitted use," said Philip Spare, the attorney for Penn-Mar Ethanol.


"We should read the zoning ordinance and apply the law, not speculate," Spare told Walsh, whose client maintains the zoning board acted correctly in determining the plant is a permitted use.

"We do need to present more evidence. The first hearing was just about the stay," Frederic Antoun, the attorney for Citizens for a Quality Environment, said, referring to a Sept. 19 hearing before Walsh on Penn-Mar Ethanol's motion to have the stay lifted.

In May, the zoning hearing board ruled that the plant that would produce up to 60 million gallons of ethanol fuel additive each year is a large-scale manufacturing facility, making it a permitted use in the township.

Antoun argued Monday that Penn-Mar officials had often called the facility a distillery, which is not specifically listed as a permitted use. The board should have ruled it was a conditional use, which would have required the Greene Township Board of Supervisors to hold hearings regarding conditions that could be imposed on its operations, he said.

The zoning board also granted Penn-Mar Ethanol a variance on a 45-foot height limitation for buildings in the township.

"The great majority of facilities planned there are structures, not buildings," Spare said. Chimneys, towers, spires and other structures that may be attached to buildings are exempt from the ordinance, he said. Storage tanks planned for the site exceed the limit by only a few feet, he said.

Walsh asked if a 90-foot chimney attached to a 44-foot building would be exempt. Antoun said ordinances have to be examined using common sense and that the zoning ordinance did not envision "biogas flares jutting up" over buildings.

Among his arguments that the plant should be a conditional use, Antoun said it is the first ethanol plant proposed in Pennsylvania and thus was not anticipated when the zoning ordinance was drafted.

"That's why we have conditional uses, because we don't know what to do with these things," he said.

Walsh asked for an up-to-date copy of the ordinance for the record. Walsh did not rule on the zoning board decision and has yet to rule on the request to lift the stay.

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