LEWISTOWN - An appeal filed by Glenn O. Hawbaker Inc., regarding the proposed construction of an asphalt plant in Brown Township was struck down recently by the court.
In the ruling handed down by President Judge Timothy S. Searer the court found "GOH has failed to show that the record is incomplete or that additional evidence is relevant and required to properly consider this land use appeal."
According to the ruling, GOH was not denied an opportunity to be heard fully nor was relevant testimony offered and excluded.
"Furthermore, GOH has failed to demonstrate how the additional evidence is relevant to this appeal," the ruling states.
As part of the ruling, the Mifflin County Court of Common Pleas scheduled a hearing for 2:30 p.m. on Oct. 10, to determine whether the Brown Township Zoning Hearing Board abused its discretion or committed an error of law and whether its necessary findings are supported by substantial evidence.
The appeal was filed on May 16 after Hawbaker was denied a request from the Zoning Hearing Board for a special exception permit.
Hawbaker has a conditional agreement of sale with Edge Wood Estates Inc., who owns the property, dated Feb. 20 for the 12.5-acre property. On March 18, Hawbaker submitted a notice of appeal from decision of the zoning officer seeking a special exception to permit the construction of an asphalt plant.
The special exemption was requested because the plant would be classified as a heavy manufacturing facility and the property is zoned as light manufacturing.
Brown Township Zoning Hearing Board wrote in its decision that it rejected the request because the evidence presented on behalf of Hawbaker failed to meet its burden of proof that construction would not substantially increase traffic congestion and it would not impact the public safety negatively, as required under Section 1813 of the Zoning Code.
In the appeal filed by Hawbaker, it states the Board failed to comply with the standards in its own zoning code as well as Pennsylvania law. According to the appeal, the board stated that the applicant had to prove it met standards set in Section 1813 but in the Zoning Code it states the Board must make those findings and that no burden is placed upon an applicant to prove the same.
The appeal states the Brown Township Zoning Hearing Board inappropriately required Hawbaker to disprove statements which Hawbaker was not able or required to answer.