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Rosebud files appeal against S. Buffalo

| Thursday, Aug. 9, 2007

Residents unhappy about Rosebud Mining Co.'s plans to drill a 450-foot air shaft in their neighborhood are banking on the township to battle the company in court.

Rosebud filed an appeal in Armstrong County Court seeking to overrule the township supervisors' rejection of the company's request for a special exception to the township zoning ordinance. An exception is needed to permit the air/elevator shaft and accompanying buildings in an R-3 residential area near Sipes and VanDyke roads.

Attorney Michael Gallagher was hired by resident Bronwen Wonders to file a petition to intervene in Rosebud's appeal but, late last week, that petition was withdrawn by Wonders. Gallagher said other petitions to intervene by more residents will not be filed, either.

"My understanding now is that nobody wanted to move forward to intervene, in terms of retaining me," Gallagher said.

As for why, he replied, "To be honest with you, I'm not really sure. I think they are putting their line on the township."

Chet Cornman, of VanDyke Road, said the residents had second thoughts about intervening at this time.

"The majority of people, at our last meeting, wanted to give Jim Favero (township solicitor) a chance to take care of this because, basically, that is what he is paid for, to take care of township business," Cornman said.

"We got word from one of the commissioners that what we were going to do was not going to help particularly," he said. "We sent a letter to Mr. Favero and a letter to our attorney that we are going to wait and hope that this next hearing does it."

Cornman was referring to a pretrial conference on the appeal. One was scheduled for June but was canceled when Judge Joseph Nickleach learned that Wonders and other residents intended to file petitions to intervene. The judge would have to hold a hearing on those petitions and decide if the residents should be allowed to intervene so he canceled the pretrial conference, Favero said.

Since that is not going to happen, Favero said the case can proceed. He said the court dates for pretrial conferences are Aug. 30 and Sept. 28.

Rosebud's appeal came after the supervisors voted at a public hearing on March 22, to deny its request.

The appeal is based on three contentions:

= That supervisors incorrectly held that Rosebud's deep mine, which the shaft would serve, does not constitute a "natural resource recovery facility" as defined in the ordinance.

= That supervisors incorrectly ruled that the company failed to establish that its proposed facility would satisfy the conditions to permit a conditional use.

= That supervisors failed to find that the proposed facility would constitute a "substantial threat to the community" which would be necessary for them to deny Rosebud's request.

Nathaniel Parker, the Clarion lawyer representing Rosebud, declined to comment on the appeal because it is pending.

"Their position is that they are entitled to the air shaft as a conditional use, as an extension of the original conditional use that was granted," Favero said, referring to the conditional use that was needed to open the mine.

He said that conditional use is under appeal by residents and arguments were recently heard by the state Supreme Court. Ironically, Favero had to argue the case on behalf of the township and against the residents. Now, he will be representing the residents as well as the supervisors against Rosebud's appeal.

"There was no indication, when they asked for such a use, that this was going to be necessary," Favero said of the proposed shaft. "Part of the grant of a conditional use is that it is compatible with a neighborhood. The argument is that it is not compatible in the area in which they want to locate it."

"We are a little dumbfounded by it because there are hundreds of acres out there, literally, that they could use," Cornman said. "I'm not sure why they feel they need to do this here, if it is an engineering matter or whatever.

"We're just afraid that it is going to ruin our properties."

He thinks Rosebud misrepresented its intentions when it persuaded residents to sell their coal rights. Cornman said the approximately 20 or so residents who will be affected by Rosebud's proposal are not sure what the company will do in terms of handling things such as sewage and what it will mean for the neighborhood in terms of vehicle traffic.

"Rosebud's claiming this is a hardship, that we are denying them access to the coal," he said. "They bought the coal rights and they new full well they would have to do this.

"We are not against them taking the coal we just want them to put it far enough away from the homes that we are not going to be disturbed by comings and goings in the middle of the night."

Favero said supervisors, in part, based their decision on the fact that the ordinance does not include deep mining as natural resource recovery, only strip mining. Rosebud disputes that, saying its DEP permit and state law establishes their mine and the air/elevator shaft as a natural resource recovery facility.

"You have a little bit of a dichotomy because a conditional use had been granted," Favero said, referring to the strip mine versus deep mine issue. "I don't know what the judge is going to do with that."

Nickleach ruled in July in Rosebud's favor on an appeal that overruled the supervisors and allows them to expand their coal waste facility near Clinton. A major reason for the decision was that most of the objectors were seasonal camp owners who did not testify. He said only one resident testified against it at the two public hearings.

Favero said the air shaft case is a different story.

"You have more individuals who came and expressed what kind of impact the airshaft is going to have on them, their environment, their lifestyle," he said. "I think the testimony was quite extensive and quite specific by the landowners.

Tom Yerace can be reached at tyerace@tribweb.com.

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