Opinion
No. 1138 C.D. 2013
01-09-2014
The Voice of the Jordan, Inc., a/k/a Voice of the Jordan, Inc., Appellant v. North Whitehall Township Board of Supervisors and Lehigh County Authority
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
This is an appeal from the order of the Lehigh County Court of Common Pleas (trial court) affirming the decision of the North Whitehall Township Board of Supervisors (Board) that approved a conditional use application for a wastewater treatment plant. Appellant Voice of the Jordan, Inc. (Objector) is a non-profit corporation opposed to the wastewater treatment plant. For the reasons set forth below, we affirm.
In April 2012, Lehigh County Authority (the Authority) filed a conditional use application for a wastewater treatment plant with the North Whitehall Township (Township) Zoning Office. The property that is the subject of the Authority's conditional use application is a 5.11 acre lot on Jordan Road in Orefield, Pennsylvania (the Property) that is to be subdivided from one of eight tracts totaling 303.64 acres owned by Kids Peace (the Kids Peace Campus). (Conditional Use Application at 2, Reproduced Record (R.R.) at 31a; Board Hearing Transcript (H.T.) at 22-23, R.R. at 55a; Board Findings of Fact (F.F.) ¶¶1, 11.) Kids Peace runs a center for youth overcoming crisis on the Kids Peace Campus. (Conditional Use Application at 2, R.R. at 31a; H.T. at 23, R.R. at 55a.) The area in which the Property is located consists of the Kids Peace Campus and, across Jordan Road, residential properties and one undeveloped lot. (Conditional Use Application 5, R.R. at 34a; H.T. at 24, 259-60, 372, R.R. at 55a, 134a, 162a.) The Property is zoned Agricultural-Rural Residential-Institutional Option (AR-I). (F.F. ¶10.) A new wastewater treatment plant serving three or more lots is a conditional use in the AR-I zoning district. Zoning Ordinance, Art. III, § 306.
The Authority's application sought conditional use approval for a 200,000 gallon per day capacity wastewater treatment plant on the Property. (Conditional Use Application at 3, R.R. at 32a; H.T. at 75-76, R.R. at 68a; F.F. ¶1.) This plant is to treat wastewater from the Kids Peace Campus, a proposed Wal-Mart shopping complex, Lehigh County Community College, and non-residential properties on the west side of Route 309, and could in the future provide wastewater treatment for residential properties on the west side of Route 309, if they choose to connect into it. (H.T. at 331-32, R.R. at 152a; Conditional Use Application at 3, R.R. at 32a.) Kids Peace has private wastewater treatment facilities near the Property with a total capacity of 62,000 gallons per day, and has a federal permit for 150,000 gallon per day discharge into the Jordan Creek. (Conditional Use Application at 2, R.R. at 31a; H.T. at 72-24, R.R. at 67a-68a; F.F. ¶12.) The Kids Peace treatment facilities consist of a 40,000 gallon per day wastewater treatment plant that it is currently operating and a smaller 22,000 gallon per day plant that has not been in use since 1999. (H.T. at 190-91, R.R. at 115a.) If the Authority's plant is constructed, the Kids Peace treatment facilities will be shut down and its wastewater will go to the Authority's plant. (Conditional Use Application at 7, R.R. at 36a; H.T. at 74-75, R.R. at 68a; F.F. ¶20.) Effluent from the Authority's treatment plant will be discharged into the Jordan Creek at the same location where the Kids Peace treatment plant currently discharges. (Conditional Use Application at 4, 9-10, R.R. at 33a, 38a-39a; H.T. at 74, 108-09, R.R. at 68a, 76a; F.F. ¶13.)
This Wal-Mart development has been the subject of two prior unsuccessful challenges before this Court. See Joseph v. North Whitehall Township Board of Supervisors, 16 A.3d 1209 (Pa. Cmwlth. 2011); Joseph v. North Whitehall Township Board of Supervisors, (Pa. Cmwlth. No. 1661 C.D. 2009, filed May 21, 2010).
The Zoning Ordinance provides that a conditional use must comply with all of the standards for special exceptions set forth in Section 119.C.3 of the Zoning Ordinance. Zoning Ordinance, Art. I, § 118.C. Section 119.C.3 requires that the proposed use "[w]ill not significantly negatively affect the desirable character of an existing residential neighborhood, such as causing substantial amounts of heavy truck traffic to travel through a residential neighborhood, or a significant odor or noise nuisance or very late night/early morning hours of operation." Zoning Ordinance, Art. I, § 119.C.3.e (emphasis added). Section 119.C.3 also requires that "[t]he applicant shall show that the use will not have a serious threat of inability to comply with the performance standards of this Ordinance, as stated in Article V." Zoning Ordinance, Art. I, § 119.C.3.g. Those Article V standards include the following:
502.A. No land owner ... shall use or allow to be used any land or structures in a way that results or threatens to result in
... [i]nterference with the reasonable use and enjoyment of property by a neighboring landowner of ordinary sensitivities.Zoning Ordinance, Art. V, §§ 502.A.5, 510.A (emphasis added).
* * *
510.A. Odors and Dust. No use shall generate toxic odors or toxic dust. No use shall generate odors or dust that are offensive to persons of average sensitivities beyond the boundaries of the subject lot. This restriction shall not apply to non-toxic odors or non-toxic dust created by permitted agricultural uses that are using "normal farming practices" within: a) the provisions of Act 133 of 1982, as amended, the State "Right to Farm Act" or b) an official Agricultural Security Area. This odor restriction shall apply to uses that do not follow the normal farming practices referenced in those State laws, such as if manure is not plowed under within a normal and reasonable period of time.
The Board held seven days of evidentiary hearings on the conditional use application between June 4, 2012 and September 10, 2012, and an eighth hearing for argument and to deliberate and vote on the application on September 18, 2012. On the second day of these hearings, Objector requested that the Board recuse itself and appoint an independent hearing officer because the conditions imposed by the Board in its approval of Wal-Mart's final land development plan provide that the Township will receive $1.5 million from Wal-Mart for traffic improvements if the Wal-Mart development proceeds. (H.T. at 137-39, R.R. at 102a; Board Resolution No. 10-05-10, R.R. at 25a-27a.) The Board denied the recusal request. (H.T. at 139-40, R.R. at 102a-103a.)
At the hearings, the Authority and Objector both presented expert testimony from registered professional engineers with experience in the operation of wastewater treatment plants on whether and to what degree the Authority's proposed plant would generate odors beyond its boundaries. The Authority's expert, John Spitko, testified that although the Authority had not selected the precise type of treatment unit that the plant will utilize, it will be one of three specific aerobic treatment systems. (H.T. at 76-80, 82-85, 91, 96-97, 160-63, R.R. at 68a-70a, 72a-73a, 108a.) Spitko explained how odor problems with wastewater treatment plants can arise, how odors can be minimized, and testified that the Authority's plant would have features to prevent odors, including enclosure of the headworks building (the first location in the plant where sewage is processed or treated), addition of chemicals or biologic agents to prevent formation of hydrogen sulfide at an upstream pumping station before the sewage flows into the plant, and not accepting waste hauler deliveries to the plant. (H.T. at 78-79, 81-82, 87-90, 94-95, 98-102, 105, 112-14, 142-47, 157-58, 161-63, 168-69, 175-78, 486, R.R. at 69a-75a, 77a-78a, 103a-104a, 107a-108a, 110a, 111a-112a, 192a.)
Spitko testified that, in his opinion, the Authority's proposed plant could process up to 200,000 gallons per day of sewage without causing an odor problem for the surrounding properties and he was "very certain" that "any odor that might be generated would definitely be contained on site." (H.T. at 81, 86-87, 101, 160-63, 206-07, R.R. at 69a, 71a, 74a, 108a, 119a.) On cross-examination, Spitko admitted that the possibility exists that there could be incidents of odor affecting surrounding properties from system failure because "[a]nything is possible," but opined that the likelihood of such occurrences was "remote," and that under normal operating conditions, no odors generated by the plant would go beyond the plant boundaries. (H.T. at 119, 151, 485, 492, R.R. at 79a, 105a, 191a, 193a.) He testified that the plant's plans reduce the likelihood of malfunctions by providing redundancy and safety devices to deal with power outages, floods and other natural disasters, and other emergencies, including a back-up generator and monitoring and alarm systems. (H.T. at 105, 147-56, 163, 169-70, R.R. at 75a, 104a-108a, 110a.)
Objector's expert, Karl Schreiter, agreed with Spitko's testimony that a properly designed and properly operating aerobic wastewater treatment plant would not normally generate offensive odors beyond the plant boundaries. (H.T. at 392-95, 422-23, R.R. at 168a-169a, 176a.) Schreiter testified, however, that in hot, humid, windless weather conditions, a pungent, earthy smell offensive to some people may be detectable as much as a half-mile to a mile away from such a plant. (H.T. at 395-96, R.R. at 169a.) Schreiter also testified that an offensive, rotten egg smell from hydrogen sulfide can be generated and go beyond the plant boundaries when an aerobic wastewater treatment plant malfunctions. (H.T. at 393-94, 396-402, R.R. at 168a-171a.) Schreiter opined that off-site odor problems from a properly designed aerobic wastewater treatment plant beyond the plant boundary are an inevitable, occasional occurrence, not a rare occurrence. (H.T. at 399-416, 461-62, 466, R.R. at 170a-174a, 185a-187a.) Schreiter testified that although the likelihood of odor problems depends on the extent of the odor control systems the plant has, all wastewater treatment plants can generate off-site offensive odors. (H.T. at 424-27, 466, R.R. at 176a-177a, 187a.) Schreiter did not believe that the Authority's proposed plant had any odor control systems. (H.T. at 406-11, 452-55, 463, 469, R.R. at 172a-173a, 183a-184a, 186a-187a.)
At the September 18, 2012 hearing, the Board voted unanimously to approve the conditional use application with nine conditions. (H.T. at 854-59, R.R. at 367a-372a.) On October 23, 2012, the Board issued its written decision granting conditional use approval for the wastewater treatment plant and setting forth those conditions. In its decision, the Board found that the Authority's proposed wastewater treatment plant had odor control features and would not create odor nuisance conditions. (F.F. ¶¶5, 18-19, 21.) The Board therefore concluded the plant would not cause any significant negative effect on the surrounding area and would "not have a serious threat of inability to comply with" Article V of the Zoning Ordinance. (Board Conclusions of Law (C.L.) ¶¶29, 31, 33.) Four of the nine conditions imposed by the Board relate to odor prevention and control: the Board required 1) that the Authority enclose the headworks and blowers in a building; 2) that the Authority add chemicals at any pump station along the route to keep sewage from becoming septic; 3) that sludge from the treatment process be removed in closed tanker trucks; and 4) that the plant not receive any waste material from haulers. (Board Decision at 1-2, Conditions Nos. 4, 6, 7 and 8.)
Objector appealed the Board's decision to the trial court. Objector did not move to present any additional evidence in the trial court. By Order entered June 6, 2013, the trial court affirmed the Board's decision. This appeal followed. In this Court, Objector argues that the Board was required to recuse itself and appoint an independent hearing officer and that the Board erred in holding that the wastewater treatment plant complied with the Zoning Ordinance's conditional use requirements concerning odors that affect other properties. Both of these arguments fail.
Because the trial court has not taken additional evidence, the Court's review in this appeal is limited to determining whether the Board committed an error of law or an abuse of discretion. Joseph, 16 A.3d at 1215 n.3. The Board abuses its discretion if its findings are not supported by substantial evidence. Id.
Objector has also moved to strike statements in the Board's brief on the ground that they are not supported by evidence in the record. This Court may consider on appeal only what is in the certified record. B.K. v. Department of Public Welfare, 36 A.3d 649, 657-58 (Pa. Cmwlth. 2012); HYK Construction Co. v. Smith Township, 8 A.3d 1009, 1016-17 (Pa. Cmwlth. 2010); C.J. v. Department of Public Welfare, 960 A.2d 494, 500 (Pa. Cmwlth. 2008). Objector is correct that the statements in the Board's brief concerning properties in the immediate area of the proposed wastewater treatment plant and concerning the Township's transportation improvements related to the Wal-Mart development are not supported by anything in the certified record. Those statements are therefore stricken from the Board's brief and have been disregarded by the Court.
I.
Due process requires that the body adjudicating a case be impartial and disinterested. Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980); Horn v. Township of Hilltown, 461 Pa. 745, 748, 337 A.2d 858, 860 (1975); Joseph v. North Whitehall Township Board of Supervisors, 16 A.3d 1209, 1220 (Pa. Cmwlth. 2011); K. Hovnanian Pennsylvania Acquisitions, LLC v. Newtown Township Board of Supervisors, 954 A.2d 718, 724 (Pa. Cmwlth. 2008). This requirement of impartiality applies to a board of supervisors where, as here, it acts as the adjudicator of a conditional use application. Joseph, 16 A.3d at 1220; K. Hovnanian Pennsylvania Acquisitions, 954 A.2d at 723; Sections 909.1(b)(3) and 913.2 of the Municipalities Planning Code (MPC), 53 P.S. §§ 10909.1(b)(3), 10913.2. Recusal may therefore be required where the board members deciding an application have a personal interest in the application, Borough of Youngsville v. Zoning Hearing Board of Borough of Youngsville, 450 A.2d 1086, 1090-91 (Pa. Cmwlth. 1982), where the municipality intervenes in the proceeding in support or in opposition to the application, In re Drumore Crossings, L.P., 984 A.2d 589, 597 (Pa. Cmwlth. 2009), or where the board and a party are represented by the same counsel in the same proceeding. Horn, 461 Pa. at 748, 337 A.2d at 860; Newtown Township Board of Supervisors v. Greater Media Radio Co., 587 A.2d 841, 843-44 (Pa. Cmwlth. 1991).
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202. Sections 909.1 and 913.2 of the MPC and Section 1005-A of the MPC, discussed below, were added by the Act of December 21, 1988, P.L. 1329, No. 170.
Section 913.2(a) of the MPC permits, but does not require, a board of supervisors to "appoint ... an independent attorney as a hearing officer" to conduct the hearing on a conditional use application. 53 P.S. § 10913.2(a); Joseph, 16 A.3d at 1220; K. Hovnanian Pennsylvania Acquisitions, 954 A.2d at 724. The burden is on Objector, as the party seeking invalidation of the Board's decision, to show a sufficient conflict of interest or appearance of impropriety to require recusal. Joseph, 16 A.3d at 1220; Caln Nether Co. v. Board of Supervisors of Thornbury Township, 840 A.2d 484, 496-97 (Pa. Cmwlth. 2004).
Ordinarily, the independent hearing officer only conducts the hearing and the decision on the application remains with the board of supervisors. Joseph, 16 A.3d at 1220; K. Hovnanian Pennsylvania Acquisitions, 954 A.2d at 724. The applicant and municipality, however, may agree that the decision will be made by the hearing officer, rather than the board of supervisors. 53 P.S. § 10913.2(a); Drumore Crossings, 984 A.2d at 597-98.
Objector does not contend that any Board member had any personal interest that affected his impartiality in this conditional use application. (Appellant's Br. at 29.) Nor did the Township or its solicitor participate in these proceedings in any way that created a conflict of interest or impaired the Board's fairness. The Township was not a party supporting or opposing the Authority's conditional use application and its solicitor, who ruled on objections and advised the Board at the hearing, did not represent the Authority or any other party. Rather, Objector argues only that the contribution that the Township will receive from the Wal-Mart development created an institutional conflict of interest and that the United States Supreme Court's decisions in Ward v. Village of Monroeville, 409 U.S. 57 (1972), and Tumey v. Ohio, 273 U.S. 510 (1927), require recusal for such a conflict, even where the individual decision makers do not have any personal pecuniary interest or other personal interest in the outcome. We do not agree.
In Ward and Tumey, the Supreme Court found a denial of due process not merely because some financial benefit to the municipality could be affected by the matter being adjudicated, but because adjudications against defendants provided or were designed to provide a substantial revenue source to the municipality. Ward, 409 U.S. at 58-60 (mayor was not impartial adjudicator of ordinance violations and traffic offenses where fines from those violations made up over one-third of the revenues of the municipality); Tumey, 273 U.S. at 532-35 (statute provided for large fines shared with municipalities to give municipalities a financial enforcement incentive). In contrast, the fact that the members of an adjudicating body have a general interest in the financial well-being of the government entity that is no different from that of the public as a whole does not violate due process. Lee Hospital v. Cambria County Board of Assessment Appeals, 638 A.2d 344, 349 (Pa. Cmwlth. 1994).
Here, unlike the situation in Ward and Tumey, the adjudication of this conditional use application was not part of a Township system for raising revenue, and the Board had no interest beyond the general interest of the Township residents as a whole. Indeed, Objector made no showing whether the $1.5 million Wal-Mart contribution amounts to substantial additional revenue for the Township or merely offsets traffic improvement costs incurred by the Township for the Wal-Mart development.
Objector was not denied the opportunity to submit evidence to attempt to support its claim of bias. Objector could have sought to introduce additional evidence in the trial court, Section 1005-A of the MPC, 53 P.S. § 11005-A; K. Hovnanian Pennsylvania Acquisitions, 954 A.2d at 722-24, but chose not to do so. --------
Objector did not even show that any interest that Township had with respect to the Wal-Mart development would create a conflict of interest as to the separate matter before the Board here, the Authority's wastewater treatment plant application. A mere tangential connection to the matter being adjudicated is insufficient to require recusal. Christman v. Zoning Hearing Board of the Township of Windsor, 854 A.2d 629, 634 (Pa. Cmwlth. 2004). The Authority's conditional use application was for a different project, not the Wal-Mart development, and Wal-Mart did not appear or participate in this proceeding. There is no evidence that approval of this wastewater treatment plant was essential to the Wal-Mart development. The Board resolution approving the Wal-Mart land development plan did not require a particular location or particular plant for sewage treatment, but only required that Wal-Mart obtain approval of plans for its sewage treatment. (Board Resolution No. 10-05-10 Condition No. 3, R.R. at 26a.) While there was evidence that Wal-Mart contemplates using a treatment plant on the Kids Peace Campus as a method of fulfilling this sewage treatment requirement (id.), there was evidence that the existing Kids Peace wastewater treatment plant had an excess capacity of 13,000 gallons per day and could meet Wal-Mart's sewage treatment needs. (H.T. at 190-91, 273-74, 450-51, R.R. at 115a, 137a-138a, 183a; Bauer Ex. 14.) Evidence was also submitted at the hearings that the Authority had another, viable alternative location for a wastewater treatment plant that could serve the sewage treatment needs of the Wal-Mart development. (H.T. at 687-88, R.R. at 244a; Bauer Ex. 16.)
Accordingly, the Board did not err in declining to recuse itself from hearing and deciding the Authority's conditional use application.
II.
The Board likewise committed no error or abuse of discretion in finding that the Authority's wastewater treatment plant satisfied the requirements for a conditional use under the Zoning Ordinance.
The fact that a proposed use is permitted as a conditional use demonstrates a legislative determination that such a use at that location would not have an adverse impact on the public interest in normal circumstances. Joseph, 16 A.3d at 1215; Marquise Investment, Inc. v. City of Pittsburgh, 11 A.3d 607, 610-11 (Pa. Cmwlth. 2010); K. Hovnanian Pennsylvania Acquisitions, 954 A.2d at 724-25. It is the applicant's burden to prove that its proposed use complies with the specific requirements for the conditional use set forth in the zoning ordinance. Joseph, 16 A.3d at 1215; Marquise Investment, 11 A.3d at 611; K. Hovnanian Pennsylvania Acquisitions, 954 A.2d at 724. If the applicant demonstrates compliance with the zoning ordinance's conditional use requirements, the conditional use application should only be denied where it is shown to be highly probable that the proposed use will have an adverse impact beyond what would normally be expected from that type of use. Marquise Investment, 11 A.3d at 611.
Objector asserts that the Authority did not meet its threshold burden of showing compliance with the Zoning Ordinance's conditional use requirements because the possibility of odors from the wastewater treatment plant allegedly violates Sections 502.A.5 and 510.A of the Zoning Ordinance, which require that uses not interfere with "reasonable use and enjoyment of property by a neighboring landowner of ordinary sensitivities" and that "[n]o use shall generate odors ... offensive to persons of average sensitivities beyond the boundaries of the subject lot." Zoning Ordinance, Art. V, §§ 502.A.5, 510.A. Objector contends that the evidence showed only that the plant would comply with these requirements "under normal operating conditions" and that the Board erred in finding compliance because Sections 502.A.5 and 510.A do not refer to "normal operating conditions."
Contrary to Objector's assertions, there was conflicting evidence before the Board as to whether there was any significant likelihood that the proposed wastewater treatment plant will emit odors beyond the plant boundaries. While Objector's expert testified that offensive odors will inevitably reach neighboring properties on some occasions (H.T. at 399-416, 461-62, 466, R.R. at 170a-174a, 185a-187a), it was not undisputed that such odor problems will occur or that they will be prevented only under normal operating conditions. The Authority's expert not only testified that no offensive odors will reach neighboring properties under normal operating conditions (H.T. at 485-86, 492, R.R. at 191a-193a), but also testified that while it cannot be absolutely guaranteed that no odor will ever go beyond the site, the possibility of off-site offensive odors is remote. (H.T. at 119, 151, R.R. at 79a, 105a.) In addition, Objector's expert's opinion that the plant will generate odors was based on his understanding that the plant would have no odor control measures (H.T. at 406-07, 425-27, 463, 469, R.R. at 172a, 176a-177a, 186a-187a), which conflicts both with the Authority's expert's testimony that sewage will be treated to reduce odor before it enters the plant (H.T. at 143, 157-58, R.R. at 103a, 107a) and the Board's condition requiring such treatment. (Board Decision at 2, Condition No. 6.) The credibility of the parties' opposing experts was for the Board to determine. Joseph, 16 A.3d at 1218; In re Thompson, 896 A.2d 659, 668-69 (Pa. Cmwlth. 2006). The Board found the Authority's expert's testimony on the issue of odors from the plant to be credible. (F.F. ¶¶5, 18-19.)
The Zoning Ordinance does not require that a conditional use applicant must guarantee that there will be perfect compliance with the standards set forth in Sections 502.A and 510.A at all times. Rather, it requires only that a conditional use or special exception applicant "show that the use will not have a serious threat of inability to comply" with those standards. Zoning Ordinance, Art. I, § 119.C.3.g (emphasis added). A remote possibility that off-site offensive odors might occur does not constitute "a serious threat of inability to comply" with the prohibitions on off-site offensive odors and interference with use and enjoyment of neighboring properties. Given the Authority's expert's testimony, which the Board found credible, the Board's finding that the Authority's plant "will not have a serious threat of inability to comply with" the Article V standards (C.L. ¶31) is supported by substantial evidence.
Moreover, to the extent that the Board interpreted Sections 502.A and 510.A of the Zoning Ordinance as setting forth requirements for "normal operating conditions," that is a reasonable construction of those provisions. In evaluating whether a use is injurious to the public welfare, the test is whether the "requested use in its normal operation would be injurious to the public health, safety and welfare." Vogel v. Hopewell Township Board of Supervisors, 365 A.2d 706, 710 (Pa. Cmwlth. 1976) (emphasis added); Franklin & Marshall College v. Zoning Hearing Board of City of Lancaster, 371 A.2d 557, 560 (Pa. Cmwlth. 1977) (quoting Zoning Hearing Board of Upper Darby Township v. Konyk, 290 A.2d 715 (Pa. Cmwlth. 1972)) (emphasis added); Sobel Construction Co. v. Zoning Hearing Board of Borough of East Stroudsburg, 329 A.2d 912, 917 (Pa. Cmwlth. 1974) (same) (emphasis added). In contrast, if normal operating conditions are not considered in applying Sections 502.A and 510.A, those provisions would negate the Zoning Ordinance's express authorization of wastewater treatment plants as a conditional use, as the evidence before the Board was undisputed that all wastewater treatment plants have some possibility of emitting offensive odors under some circumstances. (H.T. at 466, 485, R.R. at 187a, 191a.) Applying Sections 502.A and 510.A of the Zoning Ordinance without regard to normal operating conditions would therefore violate the basic canon of statutory construction that an ordinance must be construed, if possible, to give effect to all of its provisions. Thompson, 896 A.2d at 669; Mann v. Lower Makefield Township, 634 A.2d 768, 771-72 (Pa. Cmwlth. 1993).
Because the Board correctly applied the law and its findings are supported by the evidence in the record, we affirm.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 9th day of January, 2014, the order of the Court of Common Pleas of Lehigh County is AFFIRMED. The motion of Appellant to strike portions of the Brief of Appellee North Whitehall Township Board of Supervisors is GRANTED.
/s/_________
JAMES GARDNER COLINS, Senior Judge