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Warner Jenkinson Company v. ZHB of Robeson Twp.
863 A.2d 139 (Pa. Cmwlth. 2004)
A landowner used his property primarily for manufacturing products. The landowner impounded the hazardous waste generated from the manufacturing process on a portion of the property. The property was located in a General Industrial District, which permitted manufacturing and any accessory uses of manufacturing, including storing hazardous waste. Over the last couple of years, the impoundment areas were filled, closed off, and sealed.
Subsequently, the landowner sought to subdivide the property so as to establish a separate lot for the impoundment areas used to store the waste generated by the prior manufacturing use. However, the Township denied the application for subdivision because it took the position that the presence of the impoundment areas did not constitute a permitted principle use, but was merely accessory to the manufacturing use.
The landowner appealed to the ZHB, arguing that because the impoundment area was closed, it no longer constituted a current use of the property. If this reasoning was accepted, the subdivision plan should not have been denied because no "current" use of the property would violate the ordinance; however, the ZHB denied the subdivision plan because it determined that the impoundment, though closed, continued as a "current" use. The Commonwealth Court affirmed the ZHB's decision, holding that an impoundment area constituted a current use because of the statutory duty to monitor the impoundment to assure that the integrity of the seal is not compromised so no waste seeps into the ground. Because the Court held that the impoundment constituted a current use and was not an accessory use to a principle manufacturing use, the ZHB properly denied the subdivision plan.
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