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Judge rules Pa. ethanol plant not an allowed use

November 29, 2005|by DON AINES

CHAMBERSBURG, PA.

chambersburg@herald-mail.com

A Franklin County judge has ruled in favor of a citizens group opposed to a proposed $80 million ethanol plant in Greene Township.

Judge Richard J. Walsh issued an order stating that Penn-Mar Ethanol's plant is not a permitted use in a heavy industrial district and that the township Zoning Hearing Board should not have granted it a height variance.

Citizens for a Quality Environment and several individuals appealed the May 26 decision of the zoning board that the plant is a large-scale manufacturing facility and thus a permitted use within the Cumberland Valley Business Park. They also appealed the granting of a variance to the township's 45-foot height limit for structures associated with the plant.

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Walsh signed the opinion and order last week and filed it with the Prothonotary's Office on Wednesday.

"My clients are very pleased with the decision and they believe that the community, not either of the parties, will be the ultimate beneficiary of the court's thoughtful and well-reasoned opinion," said Frederic G. Antoun, the attorney for Citizens for a Quality Environment.

"The key factor here is the township will now have to hold the hearings required by the ordinance for this type of unusual development," Antoun said. "This is certainly the type of development for which the conditional use hearing and approval process is meant to apply."

A spokeswoman for Penn-Mar Ethanol said Monday that Project Manager Scott Welsh and attorneys for the partnership had not seen the judge's ruling and could not comment on it or discuss future plans until it had been reviewed.

John Van Horn, the executive director of the Letterkenny Industrial Development Authority, which runs the business park, also said he could not comment, having not read the ruling.

A stay of further review by the township of Penn-Mar's plans had been in place since June, pending the outcome of the appeal.

Antoun argued that an ethanol plant was not among the specifically listed permitted uses for industrial zones contained in the township's zoning ordinance. The appointed members of the zoning board voted the plant could be permitted as a large-scale manufacturing facility.

"Even the applicant does not argue that an ethanol production facility is specifically listed as a permitted use," Walsh wrote in his opinion. "We are hard-pressed to conclude that that which is described as a 'large-scale manufacturing plant' is in any way specific," he wrote.

Walsh also took issue with how township officials determined it was a permitted use.

"The very nature of the uses contemplated in the district - flammable or explosive materials, hazardous conditions, special environmental protections - is the strongest indication that decisions involving such matters be made in a deliberative way, based on an abundance of information, after a public hearing by elected officials and not as a ministerial function by an appointed officer," Walsh wrote.

The judge wrote that the township zoning officer, legal counsel and one or more supervisors "after much massaging of the matter ... managed to 'conclude' that the use was permitted."

Regarding the variance, Walsh wrote that Penn-Mar Ethanol produced no evidence at an April 18 hearing before the zoning board "as to whether the variance would be detrimental to the public welfare or alter the essential character of the neighborhood," while the appellants "presented a substantial amount of evidence that the variance would destroy the scenic beauty of the neighborhood and obstruct views."

The judge also wrote that a Letterkenny Army Depot official "testified the variance might adversely impact the mission at Letterkenny, next to whom Penn-Mar hopes to build its ethanol facility."

Walsh also cited testimony from a Sept. 19 hearing in court from an engineer employed by Penn-Mar and concluded the height restriction "does not place an unnecessary hardship on the property upon which Penn-Mar hopes to build its facility."

If Penn-Mar Ethanol continues to pursue the 55-acre business park site, Antoun said the Greene Township Board of Supervisors will have to hold hearings to determine what kind of conditions may be placed on the operation of the plant.

"We've been preparing for hearings at the township and the expected PaDEP (Pennsylvania Department of Environmental Protection) hearing since the matter began," Antoun said. Penn-Mar had been involved in hearings for a conditional use permit in Conoy Township in Lancaster County prior to announcing early this year that it wanted to build the plant in Franklin County, he said.

When the York, Pa.- based partnership made that announcement, company officials stated it would produce about 60 million gallons of the fuel additive a year from 20 million bushels of corn, along with marketable byproducts including livestock feed and carbon dioxide.

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