WEST PENN TOWNSHIP Date received by West Penn Township

27 MUNICIPAL ROAD,
NEW RINGGOLD, PA 17960
Office 570 386-4507 Fax 570 386-5851
Zoning / Code Enforcement 570 386-2035
Road Master 570 386-2453
Police 570 386-1100 Emergency 911

COMPLAINT
Complainants Name: Allison McArdle Phone # 570-386-3308

Address (Number & St, Rd, or Dr) 768 Blue Mountain Drive

(Town/City, State, & Zip Code) Andreas, PA 18211

Description of Complaint/Problem (include Name and address / location of complaint):

West Penn Township Zoning Permit Appeal to the West Penn Township Zoning Hearing Board

WPT Zoning Permit Appeal regarding Permit issued to David Knoedler on 1/13/15

Non Compliance with Terms of Application & Improvident Granting of Zoning Permit by Zoning Officer

See Attachment A hereto

Signature of Complainant: ______________________________________________________

PLEASE CHECK HERE If you would like to receive a response to the request you are
submitting.

OFFICIAL USE ONLY

Referred to:
__ Road Department __ Zoning / Code Enforcement __ Police __ Solicitor

__ Engineer __ Board of Supervisors __ Planning Commission __ Other

Action Taken:
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
____________________________________________________________________________
Contact Made by: _________________________________Date: ______/______/___________

Response Made by:________________________ Date: ____/____/_________

Complainant: _____ Satisfied _____ Not Satisfied

Attachment A
 WEST PENN TOWNSHIP ZONING PERMIT APPEAL
To The
WEST PENN TOWNSHIP ZONING HEARING BOARD

RE:
PERMIT ISSUED TO DAVID KNOEDLER DATED JAN 13, 2015

APPELLANT

Appellant: Allison McArdle

Address: 768 Blue Mountain Drive

Andreas, West Penn Township Schuylkill County, PA 18211

Signature: _____________________________

Date: 2/28/17

Fee Paid: ________________

PERMIT

Zoning Permit #: Z15-004

Issuance Date: January 13, 2015

Zoning Permit Application Filing Date: December 23, 2014

Issued to: Mr. & Mrs. David Knoedler Ringgold Acquisition Group II, LLC (Applicant)

Owner: Mr. & Mrs. David Knoedler (Knoedler)

Value: na land use

Work/Use: Water Harvesting

Location: One Fort Franklin Road

Andreas, West Penn Township Schuylkill County, PA 18211

Tax Identification (UPI) Number: 37-21-0017.000

Zoning District: CN

*True and correct copies of Permit and Zoning Permit Application attached as Exhibit 1.

-1-
 GROUNDS FOR APPEAL

The Complainant herein, Allison McArdle, puts forth the below outlined

particulars, to the Zoning Permit issued to Knoedler (Applicant) for the premises

located at One Fort Franklin Road, West Penn Township, Schuylkill County,

Pennsylvania 18211 (Premises), and listed in the Schuylkill County Tax Parcel system

as #37-21-0017.000, as meritorious grounds for appeal. As noted above, a true and

correct copy of the aforementioned Zoning Permit (Zoning Permit) as well as its

Zoning Permit Application (Application) are attached hereto Exhibit 1.

1. NONCOMPLIANCE WITH THE TERMS OF THE APPLICATION

Applicant has not complied with the terms and conditions of submitted Zoning

Permit Application which described both the proposed use and construction activities for

the site. Requirements specified under the Permit, require completion within two years.

The two-year period for allowance expired on January 14, 2017.

a. Applicant has not completed the items specified in the Application;

b. Applicant has not received, or even applied for a permit from the
Pennsylvania Department of Environmental Protection (PA DEP)
for the use of the water extracted from the Premises for human
consumption1. The lack thereof violates Section 802, 3c of the West
Penn Township Zoning Ordinance. Section 802, 3c of the West Penn
Township Zoning Ordinance (WPTZO) requires that all other
government permits must be provided prior to issuance of Zoning
Permit;

1
West Penn Township Zoning Ordinance at Section 802, 3c provides: [p]rior to the
issuance of any Zoning Permit, the Zoning Officer shall review the application for such
permit to determine if all other necessary governmental permits (such as those required
by State and Federal laws such as Act 537, the Pennsylvania Sewage Facilities Act, the
Water Obstruction Act of 1913, the Federal Water Pollution Control Act Amendments of
1972. Section 404, 33 U.S.C. 1334) have been obtained. No permit shall be issued until
this determination has been made.

-2-
 c. Applicant fraudulently and/or negligently misrepresented that the
intended use for the water extracted from the Premises was for
Agriculture purposes and/or the same is used to irrigate farms;

d. No permit has been granted, nor has any application even been made
to the Delaware River Basin Commission (DRBC) for a
consumptive use permit. The lack thereof violates Section 802, 3c of
the WPTZO;

e. No Land Development Plan has been filed with West Penn Township
(WPT). WPT served upon Applicant a Notice of Violation (dated
3/18/15) for performance of work with no plan filed;

f. Erosion and Sedimentation Plans have not been filed with the
Schuylkill County Conservation District Office in violation of state
laws, governing earth disturbance in excess of 5000 square feet;

g. No Township Road access permit has been applied for or received;

h. The Application is incomplete as it does not fully disclose the full

extent of the uses of the land as required by Section 802, 3b of the
WPTZO2. The use of the land for a loading terminal for up to 100
tractor trailers per day is not an insignificant ancillary use of the land.
Truck terminals are specifically permitted under the WPTZO in the
Light Industrial / Business District (LI/B) zone at Sect. 311 B 20;

i. Under Section C3 of the Application (Land Use Description),

Applicant, in relevant part, indicated building of a water supply
system which is defined on pages 2-21 through 2-22 of the
WPTZO and which must to be in compliance with the requirements of
the appropriate state agencies. The lack of any state mandated
compliance certifications violates the WPTZO;

j. Under Section C3 of the Application (Land Use Description),

Applicant fraudulently and/or negligently misrepresented that [t]he
proposed use would entail the redevelopment of the existing springs on
the property The existence of seven (7) new deep wells on the
Premises evidences the aforementioned misrepresentation. As such,
the lack of redevelopment as prescribed in the Application

2
Section 802, 3b of the West Penn Township Zoning Ordinance provides: [a]ll
applications for a Zoning Permit shall include a plot plan drawn to scale showing the
location and dimensions of the lot area of the proposed uses of buildings and/or land.
The Zoning Officer or the Zoning Hearing Board may require any additional information
which he deems necessary to properly evaluate the application for the purpose of
determining its conformity with this Ordinance.

-3-
 demonstrates noncompliance with the terms of the Zoning Permit as
issued; and

k. Under Section C3 of the Application (Land Use Description), the

following statement the piping of water to a structure in the Ag
zone for distribution by way of truck to end users is not a clear
description of the use. The uses are not enumerated as to the types,
and quantities or intensity of use. While water irrigation may be an
approved use, Industrial use as part of a water bottling system is not
allowed in the zone. Thus, the statement is deceptive in nature.

2. IMPROVIDENT GRANTING OF ZONING PERMIT

BY ZONING OFFICER

The Zoning Officer is not allowed to issue a permit to any applicant, unless the

activity applied for is specifically listed in the column of Permitted by Right uses listed

in the Zoning District listed in the Application.

a. Section 803, B1a of the WPTZO indicates: [t]he Zoning Officer:

Shall administer the Zoning Ordinance in accordance with its literal
terms;

b. Section 803, B3 of the WPTZO indicates: [t]he Zoning Officer shall

not have the power to permit any construction, use or change of use
which does not conform to this Ordinance;

c. Section 803, B3 of the WPTZO, in relevant part, provides: [a]ny

Doubt as to the meaning or intent or as to the use of a property, ZO
shall appeal the matter to the Zoning Hearing Board for interpretation
and decision;

d. The Commonwealth Court of Pennsylvania3 has reviewed a water

extraction operation similar to the instant and determined that the
proposed use is far more intensive than any agricultural use and is
much akin to a mining operation in which resources or minerals are
extracted from the ground and then shipped off of the property by
truck.

e. The Zoning Officer had no authority to issue a permit for a non-listed

use in the CN zone. In the instant, reliance on Header v. Schuylkill

3
See Venable, et al v. Bethel Township Hearing Board, No. 2754 C.D., 2000 Cmwlth
July 5, 2011 (Unreported). A true and correct copy of the Commonwealth Courts
Opinion is attached hereto as Exhibit 2.

-4-
 County Zoning Hearing Board is inappropriate. Header is
distinguishable and inapplicable. Header was allowed in an A zone,
which under the Schuylkill County Ordinance, allowed food
processing. The WPTZO only allows food processing in the
Extractive Industrial District , EI zone, as a special exception use.
Listed at Section 313, C 5 of the WPTZO. Also note that in Venable
(Exhibit 2), the Commonwealth Court opined that the taking of water
from deep beneath the surface and the heavy use of trucks, has more in
common with mining than with agriculture;

f. The main use of the Premises must be determined by the volume or

level of activity to be conducted. Herein, he activity of pumping water
from deep underground wells is subsumed by the massive amount of
truck traffic that will be generated. Zoning Officer violated the
Ordinance in granting a permit which would be totally in opposition to
the stated purpose of the Conservation District (Section 305 of the
WPTZO): the purpose of the Conservation district are to protect the
scenic, recreational and environmental resources of West Penn.
While allowing the continuation of limited, large lot, single family
residential uses. As noted above, Applicant purposefully and/or
negligently concealed the nature and intensity of the true character of
the use of the site in his application;

g. Water cannot be harvested: the USDA does not list water as an

agricultural product. See 7 U.S. Code 451 Agricultural Products.
All products of agriculture are living or growing products, of and by
the use of the soil. All agricultural products have one thing in
common, the carbon molecule; water does not;

h. Water extracted from the Premises has been transported for non-
agricultural uses, including but not limited to the Niagara water
bottling facility. As such, pursuant to In Re Broad Mountain
Development Company, LLC, 17 A.3d 434 (Commonwealth Court,
2011), the instant Zoning Permit was improperly issued because
extracting water from the Premises as aforementioned is not a
permissible use;

i. To date, WPT has not provided proper notice to Appellant (who lives
adjacent from the Premises) or to any other West Penn Township
resident that a large truck oriented facility was going to open and
operate from the Premises. Pursuant to In Re Broad Mountain
Development Company, the lack of the aforementioned notice ever
being provided to Appellant and/or posted is grounds for the Zoning
Permit to be revoked; and

-5-
 j. The Zoning Permit was issued illegally or in violation of the law, or
under a mistake of fact by the Zoning Permit. As such, the Zoning
Permit confers no vested right or privilege on the Applicant and it
should be revoked notwithstanding that Applicant may have acted
upon the permit. In Re Broad Mountain Development Company citing
Peulso v. Kistner, 970 A.2d 530 (Pa.Cmwlth.2009). Likewise, any
expenditures made by Applicant in reliance upon the Zoning Permit
were made at the Applicants own peril.

WHEREFORE, Appellant, for the reasons set forth above, requests that the

Zoning Permit (Z15-004) issued to Applicant (Knoedler) be revoked as either by reason

of noncompliance with the terms of the issuance within the two year expiration period.

Or in the alternative, on the basis that the Zoning Permit was granted in an Improvident

Manner by the Zoning Officer, either by deception on the part of the Applicant or

improper application of both the West Penn Township Zoning Ordinance and other

prevailing and controlling Federal and/or State statutes or laws.

-6-