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DEP moving ahead on crematory draft plan despite pending appeal

By Dan Miller, danmiller@pressandjournal.com
Posted 4/19/17

Even as Middletown continues waiting on a Dauphin County judge to rule regarding whether to allow a crematory at Fager-Finkenbinder Funeral Home, state regulators are moving closer to their own …

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DEP moving ahead on crematory draft plan despite pending appeal

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Even as Middletown continues waiting on a Dauphin County judge to rule regarding whether to allow a crematory at Fager-Finkenbinder Funeral Home, state regulators are moving closer to their own approval of the crematory, according to a lawyer representing the funeral home.

The Pennsylvania Department of Environmental Protection has issued a “draft plan approval” of a permit to build and operate the crematory at the funeral home that Fager-Finkenbinder applied for in October 2015, said Mark Dausch, an attorney with Babst Calland in Pittsburgh.

DEP spokesman John Repetz confirmed that the agency has issued a draft plan approval regarding the Fager-Finkenbinder crematory permit.

Notice of intent to issue the draft plan approval was published in the Jan. 14 and Jan. 21 issues of the Pennsylvania Bulletin, including information on how people could review the draft and submit comments.

DEP received at least three sets of public comments in response. “At this point no final determination has been made” regarding approval of the permit, Repetz said.

In August 2016, opponents who live or own property near the crematory appealed to Dauphin County Court a 1-1 decision by the Middletown zoning hearing board. Under law, the tie vote upheld the June 2015 decision by a former borough zoning officer granting Fager-Finkenbinder, located at 208 N. Union St., a use permit to allow the crematory on the funeral home property.

“We have valid zoning approval right now,” Dausch told the Press & Journal, adding that the Babst Calland lawyers have been “working with DEP moving the project forward.”

Briefs have been filed by lawyers representing both the opponents and the funeral home. A brief was also filed by a lawyer on behalf of the borough, which has signed on as an intervenor in the case.

Now, it’s in the hands of Senior Judge Lawrence F. Clark. Lawyers on both sides said they don’t know when to expect a ruling from Clark.

Likely not the end

No matter how Clark rules, his decision might not be the end of the controversy. The funeral home or the opponents could appeal the county court decision to Commonwealth Court.

Another possibility is that Clark could decide to send — or in court parlance, “remand” — the crematory case back to the Middletown Zoning Hearing Board for a rehearing.

That would likely put off any appeal to Commonwealth Court until the matter plays itself out before the zoning board.

Opponents object to the crematory based on their contention that crematory emissions will be harmful to health; that lighting, odor and noise from the crematory will be a public nuisance, and that the crematory will lower property values in the surrounding area.

Opponents have also expressed concern about the volume of bodies that could be brought to the crematory in Middletown. The owner of Fager-Finkenbinder testified before the zoning board that bodies from other funeral homes that the chain owns would also be shipped to Middletown for burning in the crematory.

Timing is an issue

But these “quality of life” issues are not at the core the county court case.

Instead, the case will turn on Clark deciding if the opponents filed their appeal of the permit with the zoning board in time, or if they filed it too late.

If Clark agrees with the funeral home that the opponents filed their appeal too late, that ends the case as far as county court is concerned.

But if Clark agrees with opponents that they appealed in time, county court could go on to consider arguments from both sides regarding the legality of the permit that was granted by the borough zoning officer in 2015, as well as issues regarding alleged adverse health effects and lowered property values that the opponents seek to raise.

In court papers, lawyers for the funeral home call for dismissing the case on grounds that opponents waited too long to file their appeal before the zoning board.

The appeal should have been filed within 30 days of opponents having “notice or reason to believe” that the borough zoning permit had been issued, say lawyers with Babst Calland.

The opponents knew of the permit through “multiple” newspaper articles in print and online that “publicized” the permit in October 2015. The funeral home also held an open house in September 2015 to discuss details of the crematory with neighbors and the public.

But instead, the opponents filed their appeal more than seven and a half months after the permit was issued, the funeral home lawyers say.

The funeral home lawyers add that the appellants were “actively recruited” and their legal fees paid for by neighbors of the crematory who had waited too long to appeal the permit.

Aaron Martin, the lawyer with Mette Evans and Woodside of Harrisburg representing the opponents, counters that the appeal was timely, and that the argument over who filed the appeal and paid for it is a “red herring.”

Law did not require the borough provide public notice of the permit being issued, so the 30-day period would not have started until construction activities would have been evident upon the funeral home property, Martin said.

Martin further argues that the court must reopen the case to consider testimony on the merits of the issue that is already on the record as having been presented to the zoning board, but which the board did not consider in its own decision, as the 1-1 tie only dealt with the timeliness of the appeal.

Martin lists several reasons why granting the permit violated borough zoning. The funeral home lies in an “R-2” residential zoning district where neither a funeral home nor a crematory are allowed by right, and where a funeral home is only allowed by special exception.

The funeral home never obtained a special exception, Martin said, adding that in testimony before the zoning board the funeral home said it had no plans to seek a special exception.

Garage use is key point

Lawyers for Fager-Finkenbinder say a funeral home has operated on the property since at least the 1960s, and that a borough ordinance passed in 1982 resulted in the funeral home becoming “a permitted use authorized by special exception.”

Lawyers on both sides also debate the legality of the garage on the funeral home property becoming an “accessory use” if converted into the crematory, which is the funeral home’s plan.

An accessory use is not permitted in any residential zone in Middletown where the primary use is only allowed by special exception, such as the funeral home, Martin says.

Even if allowed, the crematory would cease to be an accessory use if bodies are brought in from other funeral homes, as this would make the crematory the “principal use” at the funeral home, Martin contends. The garage cannot be converted from one non-conforming use to another without special exception.

Lawyers for Fager-Finkenbinder refer to the garage as “the smaller funeral home building,” and say that it has been part of the funeral home’s principal use since at least 1989. This makes the smaller building “a non-conforming structure that is entitled to constitutional protection,” the funeral home lawyers say.

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