Jojo Oil Co. v. Dingman Township Zoning Hearing Board
2013 Pa. Commw. LEXIS 374
Pa. Commw. Ct.2013Background
- JoJo Oil (Applicant) sought a special-exception permit under Dingman Township Ordinance to operate an unmanned bulk fuel transfer station (two 20,000-gal underground oil tanks; one 30,000-gal above-ground propane tank) on a 3.3-acre parcel in an RC (Resort/Commercial) zone.
- Zoning Officer found the use was a "use not provided for" and forwarded the application to the Zoning Hearing Board (ZHB) under Section 105 (savings clause).
- Applicant presented engineering and operations testimony claiming compliance with NFPA/state standards, setback requirements, monitoring and safety systems; Objectors (nearby residential associations and residents) emphasized proximity to homes (nearest ~185–200 ft), BLEVE/explosion risk, traffic, and screening concerns.
- ZHB denied the application, finding Applicant failed the Section 105 threshold (similarity/compatibility with district uses) and many Section 404.2 special-exception criteria (screening, safeguards, adjoining similar uses, need).
- Trial court reversed, holding Applicant met non-preempted zoning criteria, shifting burden to Objectors who failed to show a high probability of substantial harm, and concluding Act 61 (Propane/LPG statute) preempted local regulation of technical safety/setback matters.
- Commonwealth Court affirmed the trial court: Section 105 threshold was met (parties/planning commission treated RC as appropriate), burden properly shifted to Objectors, Objectors’ evidence was speculative re: substantial safety risk, and Act 61 preempted local regulation of LPG technical/safety matters.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Applicant met Section 105 "use not provided for" threshold (similarity/compatibility with RC uses) | Applicant: proposed use is similar to gasoline stations/other RC uses; RC is appropriate zone. | Objectors: bulk fuel transfer is materially different (pressurized LPG vs. underground gasoline) and not similar; trial court erred in skipping threshold. | Court: threshold met — planning commission, Applicant’s expert, and Objectors’ expert agreed RC was appropriate; Section 105 satisfied. |
| Whether, after Applicant met objective special-exception criteria, burden properly shifted to Objectors to prove substantial detriment to health/safety | Applicant: met Section 404.2 objective criteria (setbacks, NFPA/state compliance, screening plans); presumption arises and burden shifts. | Objectors: trial court improperly shifted burden; zoning board should have denied without burden shift. | Court: burden shifts once applicant meets objective criteria; trial court correctly shifted burden to Objectors. |
| Whether Objectors proved a high degree of probability of substantial harm (public safety) to overcome Applicant’s presumption | Objectors: proximity to residences, traffic, BLEVE risk, and screening inadequacy demonstrate high probability of substantial harm. | Applicant: Objectors offered speculation without technical proof of risk; industry regulation and compliance mitigate concerns. | Court: Objectors’ evidence was speculative; no expert proof of explosion likelihood; failed to meet required high probability standard. |
| Whether Act 61 (LPG statute) preempts local regulation of location/setback/safety for LPG facilities | Objectors/ZHB: local zoning may consider location/compatibility; ZHB’s denial regulated placement/appropriateness, not technical standards, so not preempted. | Applicant/Trial court: Act 61 expressly reserves Commonwealth regulation of LPG operations, including location/setback/safety, limiting municipal authority to choose zoning districts only. | Court: Act 61 preempts municipal regulation of technical safety/setback matters for LPG; municipalities retain only zoning-district designation authority; ZHB’s safety-based refusal conflicted with preempted field. |
Key Cases Cited
- Cellco Partnership v. North Annville Township Zoning Hearing Board, 939 A.2d 430 (Pa. Cmwlth. 2007) (analyzes "use not provided for" / savings-clause application)
- Bray v. Zoning Board of Adjustment of Philadelphia, 410 A.2d 909 (Pa. Cmwlth. 1980) (special-exception presumption and burden principles)
- Greaton Properties, Inc. v. Lower Merion Township, 796 A.2d 1038 (Pa. Cmwlth. 2002) (presumption arises when applicant meets objective criteria; burden shifts to objectors)
- Manor Healthcare v. Zoning Hearing Board, 590 A.2d 65 (Pa. Cmwlth. 1991) (objectors must show high degree of probability of substantial harm; speculation insufficient)
- Range Resources v. Salem Township, 964 A.2d 869 (Pa. 2009) (preemption controls when Commonwealth regulatory scheme occupies field over local regulation)
- Airport Prof’l Office Ctr. 100 Condo. Ass’n v. Zoning Hearing Board of Moon Twp., 20 A.3d 649 (Pa. Cmwlth. 2011) (standard of review for zoning board when no new evidence is taken)