1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 ATHENS TOWNSHIP BOARD OF SUPERVISORS PUBLIC HEARING February 9, 2021 RE: Conditional Use Variance Application By: Bishop Brothers Construction Co. Inc. Regarding Parcel 09-020.00-104 PRESENT: SUPERVISORS: Chairwoman Tressa Heffron, Kirstie Lake, Christine Vough, Alan Burgess & Susan Seck ZONING OFFICER: Edmund Reid SOLICITOR: John Thompson, Esq. REPORTED BY: ELIZABETH BRUCIE 607.760.8832 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2 (WHEREUPON, THE PLEDGE OF ALLEGIANCE WAS RECITED) CHAIRWOMAN HEFFRON: So at this time I will send you over to our Attorney John Thompson. MR. THOMPSON: Good evening, everyone, as Theresa has indicated, I'm John Thompson, I am the solicitor for the Athens Township. I would like the very briefly introduce the members of the board who those who may not know. Tressa Heffron our chairwoman, to her left is Kirstie Lake a supervisor. We have Alan Burgess and on the far end is Susan Seck. I will also indicate that Christine Vough, our fifth supervisor is running a few minutes late. She will be attending in the very near future. The five of them constitute the members of the Athens Township Board of Supervisors. Also here this evening is Beth Brucie who is going to be transcribing the proceedings. So for those of you who have not been involved in this kind of an action 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 3 before, please note that she will be transcribing everyone. So I'm going to ask you all to please maintain decorum, understand that she cannot possibly transcribe two people that are communicating at the same time. I can assure you, we will get to everyone, we will give everyone an opportunity to be heard. But until we get to that component of the proceedings, I would just ask you to please be mindful of the others. In addition, there are two to my immediate right is Chris Jones, he is an attorney who will be representing the Applicant who is represented by Dustin Bishop and Andy Bishop of Bishop Brothers Construction, as well as Tim Gourley who is the engineer associated with this project. The purpose of tonight's meeting is to conduct a public hearing on the application of Bishop Brothers Construction Company to engage in a mineral extraction operation. The operation would be held on premises located at 312 Minard Drive, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 4 that's Sayre, Athens Township. That parcel is identified as 09-020.00-104. It does lie within the agricultural zoning district which mineral extraction operations are a conditional use within that zoning district. The Athens Township Zoning Ordinance has very specific criteria for a conditional use proceeding. I want the individuals here to understand that while this is not a court, it is quasi-judicial, which obligates the Board of Supervisors to consider the facts and the law. The law being what's contained in the Zoning Ordinance. The facts being what will be presented by the Applicant in support of their application. It should be noted that this is not a situation where individual, where an individual's opinion comes into play. This is very much like a judicial proceeding in that it's a simple application of law to facts, and the supervisors' responsibility will be to determine whether or not the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 5 Applicant has met its burden of establishing compliance with the Zoning Ordinance. If they do present sufficient evidence then the burden would shift to any objector to provide concrete evidence of the negative impacts upon the neighborhood, the people, the community. It is a high standard, but one that I would encourage anyone who has any objections to bring forth those objections and allow the board to make that determination. However, I would note that mere conjecture is insufficient to meet that burden. You would essentially need to have concrete evidence presented as to the nature of the hardship or the nature of the harm that you're indicating would befall the neighborhood and the citizens. That said, are there any questions from anyone prior to us beginning? If there are none, I would at this time call the Board's only witness, it's our zoning officer Edmund Reid, I would have a few 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 6 questions for him. Then I would be turning over the proceedings to Attorney Jones for presentation of the Applicant's case in chief. MR. JONES: Can I ask one question, is Mrs. Minard on zoom? SUPERVISOR: She is. CHAIRWOMAN HEFFRON: Just so you know, Mrs. Minard is the owner of the property. She is on Zoom, and her attorney is Mr. Landy who is here on her behalf. MR. THOMPSON: At this time I would call Edmund Reid and would request that he be sworn in. (WHEREUPON, ZONING OFFICER EDMUND REID WAS DULY SWORN) SUPERVISOR: Ed, could you come up here so people online can hear you as well? MR. THOMPSON: If you would state your name and position with the Town for the record? EDMUND REID: Edmund Reid, I am the zoning officer for Athens Township. MR. THOMPSON: Mr. Reid, it's my 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 7 understanding that the applicant filed for conditional use to conduct a mineral extraction operation within the Township; is that correct? EDMUND REID: Yes, that's correct, it came in on November 2nd, 2020. MR. THOMPSON: What did you do at the time of the presentation of the application? EDMUND REID: I reviewed the application for completeness; and once I saw that it was complete, I turned it over to the Township secretary to be brought to the Supervisors to set a date for the hearing. MR. THOMPSON: And did you take any other action at that time? EDMUND REID: No. I waited for it, for legal notice to be brought to me. And then once the legal notice was brought to me, I was set to post the properties and advise the property owners. MR. THOMPSON: And can you indicate which property owners were given direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 8 notification of today's proceeding? EDMUND REID: Anybody that was within 300 feet of the property lines. MR. THOMPSON: And I believe you indicated that the application was complete and that you in fact engaged in all of the actions as required by the Township Zoning Ordinance for the preparation for a conditional use proceeding? EDMUND REID: That is correct. MR. THOMPSON: At this time, I have three exhibits that I would ask the Board or present to the Board and ask to be made part of the record. Exhibit Number 1 the Board -- is in fact a copy of the application filed by Bishop Brothers. Number 2, Exhibit 2 would be a copy of the legal notice that was provided to the surrounding residents within 300 yards of the property, as well as advertised with today's proceeding date. And thirdly is a copy of the notes from the Bradford -- I'm sorry, the Athens Township Planning Commission comments which we would also 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 9 request to be made part of the record in this case. Is there any objections to the introduction of those? MR. JONES: No objection. MR. THOMPSON: In which case they would be admitted. And I believe there would be no further questions for you, Mr. Reid. I would now turn things over to Attorney Jones for presentation of the case in chief. MR. JONES: Good evening, Supervisors, I'm just going to give a brief opening. I appreciate everyone for being here. The application -- thank you, John. We're here on an application for a conditional use for a mineral extraction operations as Attorney Thompson stated for Bishop Brothers Construction Co. Inc., on Mrs. Jeanette Minard's property in Athens Township. First, what is a conditional use? So a conditional use of real property is 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 10 nothing more than a special exception that falls within the jurisdiction of the Township rather than a Zoning Hearing Board. Okay. A conditional use is one specifically recognized by the legislature here, the Township, as consistent within a zoning plan. As such, it's presumed the particular type of use does not of itself adversely affect public interest. The fact that a particular type of use of real property is permitted as a conditional use evidences the legislative decision that such use is not adverse to the public interest per se. So that's very important. This is in an agricultural district, it's set forth by the Ordinance under Section 310, and that a mineral extraction operation is a conditional use. So with that, a mineral extraction operation is such that by itself it fits within the zoning plan and is not adverse to the public interest per se. As I stated before, conditional use is just as a special exception. A special exception is 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 11 neither special nor is it an exception. It's instead a use that is expressly contemplated that evidences a legislative decision that that type of use is consistent with a zoning plan and presumptively consistent with the health, safety and welfare of the community. So we are going to present here this application requesting a conditional use for a mineral extraction operation. Dustin Bishop will testify on behalf of Bishop Brother Construction Co. Inc., and Tim Gourley will give the technical aspect of this plan as the engineer. After we've met our Section 424 which is within the ordinance under the mineral extraction operations, the specific requirements as set forth within that ordinance, we have met our burden. And I would submit that at that, you should grant the conditional use. The burden then shifts as Attorney Thompson stated, if there are objectors, and those objections cannot be on mere 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 12 speculation or conjecture. It's very important, the burden is very high to overrule the conditional use. The objectors must not only show that there is a high probability that the proposed use will cause adverse impact to the health and safety of the community, but that that use proposed would create an adverse impact not normally generated by the type of use proposed. So a much harder standard than just it's going to be adverse, because in itself the conditional use is permitted by the ordinance that it is within the zoning plan and that it does not adversely affect the health and safety and welfare of the community. So you have to show that the use of this type is something that would, something would show an adverse impact not normally generated by that type of use; which is very different. With that, I will call Dustin Bishop. (WHEREUPON, APPLICANT DUSTIN BISHOP WAS DULY SWORN) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 13 EXAMINATION OF DUSTIN BISHOP BY MR. JONES: Q Dustin, can you state your name and address? A Dustin Bishop, 45 Woodland Pines Road, Athens, Pennsylvania. Q And what is your position with Bishop Brothers Construction Co. Inc.? A I am vice president. Q And you currently entered into a, you have a lease, a mineral lease with Mrs. Minard; is that correct? A Correct. Q And we have a, is this a memorandum of that lease that was entered into with Mrs. Minard? A Yes. MR. JONES: We will go with Exhibit A, Applicant's Exhibit A. Q So that is a memorandum of a lease with Mrs. Minard for her property which you have entered into a quarry or mineral operations lease for her property; is that correct? A Correct. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 14 MR. JONES: I would ask that be admitted as Applicant's Exhibit A. MR. THOMPSON: Any objection? There being none, that would be admitted as Applicant's A. Q Who is the president of your -- of Bishop Brothers Construction Co. Inc.? A Andy Bishop. Q He is here today? A He is here. Q What is the nature of the business of the Bishop Brothers Construction Co. Inc.? A So Bishop Brothers Construction, we are specialized in site excavation, asphalt paving. We have an asphalt plant that makes the asphalt. We also own a company named Wysox Sand and Gravel, they supply ReadiMix concrete to the Bradford County contractors. And then we also have quarries and mines. One we own in Sheshequin, that's a gravel mine that we have for extracting gravel to produce sand and stone to make concrete and asphalt. Our other mines, one is in North Towanda Township that's named Luther's Mine, it's a similar mine as to what is 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 15 in Sheshequin. Then we have a rock quarry that is in Hornbrook Park, and that's rock that we do blasting, stone. Q I'm going to refer as Bishop Brothers, where is your operations located, your offices? A Our main office is in Towanda it's on Leisure Drive, 1376 Leisure Drive, Towanda. At that site is where our asphalt plant is, and then our equipment garage and truck garage is in Hornbrook. Q And Wysox? A Wysox Sand and Gravel is on 187 Wysox, correct. Q And how long has Bishop Brothers been in existence? A Bishop Brothers started in 1983, and they were incorporated in 1997. The business changed throughout the years. They were a home builder, and then we went into industrial maintenance, and then into gas, the gas field. And now we're into mining and concrete and asphalt. Q It's -- Bishop Brothers being family, right? A Correct, correct. So my father is the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 16 owner. My sister, she's head of our HR in our office. We have several family members that work for us, and several husband and wives that work for us. And I don't know if we have a husband wife and kid, child yet. But that's kind of, we're very family oriented. Q I mean that's the same with, when you're saying Bishop Brothers, that would be the same with Wysox Sand and Gravel as well? A Correct, yes. Q Approximately how many individuals do you employ? A So Bishop Brothers employs -- we have 53 full time. Wysox Sand and Gravel has 18. And another company that we own is M&K Contracting, they have about 20 employees. Those numbers do -- you know, they do, in peak of the season, they will go up, probably about ten percent, in the peak of the season. Q So approximately a hundred employees? A Approximately a hundred employees, yes. Q And your business is primarily within the county, would that be accurate? A Yes. Yep, so 95 percent of our employees 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 17 are all, they all reside in Bradford County. Q And the business that you do, would you say primarily would be within the county? A Yes. Yes, primarily within the county; when we are outside of the county, it's working for most of the time the State of Pennsylvania. Q I mean do you actually supply services to Athens Township? A We do, yes, we do. Most recently we paved Sunnyfield Drive. Q So you perform pavings, and not only Township roads but also state? A We have not paved any state roads. We supply asphalt for the state to pave their roads. Q Sorry, all right. So we're here due to your request for a conditional use for a mineral operation on Mrs. Minard's property? A Correct. Q And this is her property, and I think it's been established, but it is in the agricultural district? A Correct. Q Can you just and we're going to get the specifics with the engineer, but if you could 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 18 just give a general narrative or outline of what this project is? A Okay. So, Mrs. Minard's property is south of Meadowlark Drive and west of the Chemung River. It is a unique property because it has two mineable materials on her property. The first mineable material that we're going to talk about is the hard rock, is what we are refer to it as. And that is on the mountain where we're applying for the permit. Q Just for the record, you are pointing to a map that is on the wall? A Sure. Q This is Mrs. Minard's property? A So Mrs. Minard's property is starting right here, (indicating), and then goes down to here, and then it goes up to here and back across the mountain butting up against Round Top, and then comes back down to Meadowlark. Q And the area which you were talking, the hard rock, that would be the outline in the red, correct? A Yes. So in that area we will be mining rock and it's -- what we found in exploration is 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 19 that it is a significantly hard material, which is what everybody's, you know, looks for, is going to be a Class A approved PennDot material which there is not a lot of it around our area. So, you know, for the Township and for the state of Pennsylvania, you know, a lot of times when they bid, they're asking for a Penn Dot approved material, and right now the Township would have to go to Troy or up just outside of Rome to get Penn Dot material. And this would be in their backyard. So that's the rock. We look to supply Bradford County, possibly some of the Southern Tier. So with that being said, then you have the gravel, the other material, the sand and gravel, which is the fields. They, sand and gravel, so sand and gravel is mined and then taken to a wash plant to be washed and crushed, and then made into materials for concrete and asphalt. Q So those are the different types of stones that you foresee at this property being the hard rock and then the gravel and the sand; is that correct? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 20 A Yes. Q So you said like this, the hard rock is, that's somewhat, I guess rare, would that? A For our area, yes. We have been looking for a long time, and came across that. Q And you know, obviously this would be a benefit to your company to find this stone. But also it would be a benefit to -- A Sure. I think, absolutely it will be a benefit to our company. But it is also a benefit to the local municipalities, the state. You know when a Township does a bid they get charged for, in that bid they get charged for trucking, so you know, their numbers are going to be elevated because there isn't a close quarry around. And for all the local contractors, for contractors in the valley, I would say they go towards Wyndham to get their job materials. And because there isn't really anything in the valley that's rock. There is sand and gravel. But there is not rock. Q And those other quarries would also require transportation and trucking of that material as well, even if it's coming to the