IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frank W. Koskovich, :

Appellant :

:

v. :

:

The Board of Supervisors of The :

Sterling Township, The Sterling :

Township Zoning Hearing Board, :

Charles Tufano and Sandra Tufano, :

husband and wife, Charles A. Landon :

and Donna L. Landon, husband and :

wife, and James Lincoln Arthur and : No. 1441 C.D. 2021

Karen L. Arthur, husband and wife : Submitted: December 2, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: April 19, 2023

Frank W. Koskovich (Koskovich) appeals from the November 16, 

2021, decision and order of the Court of Common Pleas of Wayne County (trial 

court). The trial court affirmed the December 10, 2020, decision of the Sterling 

Township (Township) Zoning Hearing Board (Board), which upheld the Township 

zoning officer’s denial of Koskovich’s application for a zoning permit under the 

Sterling Township Zoning Ordinance (2017) (Ordinance) to place highway 

construction debris as fill on his property. Upon review, we affirm.
2

I. Factual & Procedural Background

Koskovich owns an unimproved 8.87-acre parcel (the Property) in the 

Township. Reproduced Record (R.R.) at 345a. It is in an area zoned as “RD - Rural 

Development.” Id. at 345a-46a. Koskovich previously applied to the Board for a 

“special exception for a fill site” on the Property. Id. at 44a. In December 2019, the 

Board issued a decision concluding that it had no jurisdiction over the application as

filed. Id. at 45a-46a. The Board reasoned that while there is no use titled “storage 

of fill” in the Ordinance, Koskovich’s proposed use was “similar” to a solid waste 

facility, which is permitted as a conditional use in the Township’s “MU - Mixed 

Use” area but not allowed in the RD area, or a storage yard for minerals,1 which is 

permitted as a conditional use in the RD area.

2

 Id. The Board therefore found 

Koskovich’s proposal to use the Property solely as a “fill site” was not eligible under 

Section 404.2(B) of the Ordinance (“Uses Not Specified in Schedule of Uses”), 

which does not allow a special exception when the proposed use is available 

elsewhere in the Township. Id. The Board thus determined that it lacked jurisdiction 

because conditional uses are determined by the Township’s Board of Supervisors. 

Id.

Koskovich appealed to the trial court, which in October 2020 issued an

order, without a corresponding opinion, stating that “the findings of the [Board] are 

1 Koskovich has not sought a conditional use permit for mineral storage on the Property.

2 A guide sheet at the beginning of the Ordinance states that the “Schedule of Uses in 

Article IV” “lists all of the uses allowed in each district and the Table of Uses Permitted by 

Districts lists uses by category and specifies in which Districts the uses are allowed.” See Guide 

to Using this Zoning Ordinance. The guide sheet also states that the “Schedule of Uses in Article 

IV also classifies all of the uses allowed in each Zoning District: Principal Permitted Uses and 

Accessory Uses – action by the Zoning Officer; Conditional Uses – review by Planning 

Commission, action by Board of Supervisors (See § 1208); Special Exceptions – review by 

Planning Commission, action by Zoning Hearing Board (See § 1208).” Id. (emphasis in original).
3

hereby vacated, and . . . the finding of no standing due to lack of jurisdiction of the 

[Board] in regard to the no special exceptions finding shall stand.” Id. at 68a. 

Koskovich did not appeal that order.

3

 

Meanwhile, in January 2020, while the special exception request was 

pending in the trial court, Koskovich submitted a Township form titled “Application 

for Building Permit,” seeking a “zoning permit” for “placement of fill” on the 

Property. R.R. at 261a. A site plan attached to the application indicated that the use 

for which the permit was sought was commercial. Id. at 265a. In February 2020, 

the Township’s zoning officer denied Koskovich’s application. Id. at 261a. In an 

attached report, the officer stated that use of the Property as a commercial fill site

was not a principal permitted use in the RD district and that Koskovich should “file 

a request for a conditional use for a commercial fill site.”4 Id. at 262a-63a. 

The officer noted that such a request must comply with Article VII of 

the Ordinance, which is titled “Performance Standards and Environmental 

Protection” and generally provides requirements for development in the Township 

to ensure public and environmental health and safety and to preclude nuisance uses 

and activities. Id. at 263a; see also Ordinance § 701 (“Performance Standards 

Applicable to All Uses in All Districts”). Specifically, the officer cited Section 707 

of Article VII, which is titled “Grading and/or Filling Operations.” Id. This Section 

states: “The grading and/or filling of a lot, parcel or any site involving cuts and/or 

3

In this appeal, both sides agree that this matter does not fit within the special exception 

aspect of the Ordinance. Koskovich’s Br. at 29-30; Objectors’ Br. at 11. Objectors are Charles 

and Sandra Tufano, husband and wife; Charles A. Landon and Donna L. Landon, husband and 

wife; and James Lincoln Arthur and Karen L. Arthur, husband and wife.

4 Presumably the zoning officer was referring to storage for forest products and minerals, 

which is listed as a conditional use in the RD district. See Ordinance Schedule of Uses for RD 

District. As noted above, Koskovich has not sought such a permit.
4

fills with an average depth greater than five (5) feet over an area of one (1) acre or 

more shall require a zoning permit when such grading is not part of an approved 

subdivision or land development plan.” Ordinance § 707. Section 707 also 

enumerates specific requirements for grading and filling operations, including 

submission of grading and drainage plans, stormwater and slope limits, soil erosion 

and sedimentation controls, and avoidance of hazardous conditions. Ordinance 

§ 707.1-707.6.

Koskovich appealed to the Board, which held a hearing in October 

2020. A new zoning officer testified that placing fill on a property to such an extent 

that its topography is changed constitutes a “use” not allowed in the RD area and 

that the Ordinance bars any use that is not scheduled in a given district. R.R. at 

100a-02a, 105a-06a & 115a. The zoning officer had inspected the Property in late 

2019 and saw fill on the site comprised of “rubble, concrete, [and] road material.” 

Id. at 119a & 125a. He considered what he saw to be solid waste, placement of

which is not allowed at all in the RD area and only allowed as a conditional use in 

the Township’s MU area as “solid waste facilities,” such as landfills. Id. at 125a & 

128a-30a. He later acknowledged, however, that the material was “being brought to 

[the] site as clean fill to fill the site and it meets [the Pennsylvania Department of 

Environmental Protection’s (DEP)] requirement for clean fill.” Id. at 134a.

The zoning officer also testified that Section 707 of the Ordinance 

requires a use-based zoning permit as a prerequisite for grading and filling on a site. 

R.R. at 105a. He stated that in this context, the zoning permit must come from either 

the Board or the Township Board of Supervisors upon a showing by the applicant 

that the proposed use, in this case grading and filling, fits within the specific district. 

Id. at 131a-32a. As part of his investigation of this matter, he learned that Koskovich 
5

had a permit from the Wayne County Conservation District for fill placement; 

however, that permit required concurrent permission from the Township, which 

Koskovich had not secured before starting his filling activities. Id. at 132a.

Koskovich presented Mitchell Jacobs (Jacobs), a professional engineer 

and the owner of Kiley Associates, which submitted the zoning permit application 

on Koskovich’s behalf. Jacobs testified that his company was retained to “extend 

the fill that [Koskovich] already had on the site.” R.R. at 138a-39a. The Property 

was vacant and there was no proposed use for it or plan to develop it as of 2019. Id. 

at 141a-42a. In preparing the application, Jacobs consulted Section 707 of the 

Ordinance. Id. at 143a-44a. He stated that his company would comply with the 

Ordinance’s requirements for stormwater runoff, slopes, hazardous conditions, and 

other particulars. Id. He explained that all necessary permits from the county and 

state had not yet been secured because the Township’s approval is a prerequisite for 

those permits. Id. at 149a. 

Based on his understanding of the Ordinance, Jacobs opined that the fill 

project was not a proposed or different land use. R.R. at 158a. He recognized that

the Property would be altered by the project but stated that no additional construction 

or development was planned. Id. He knew that grading and filling was not listed as 

a principal permitted use in the RD area, but he did not view it as prohibited, either. 

Id. at 165a-68a. He acknowledged that the site plan accompanying the application 

indicated that the proposed use was commercial, but stated that was an error; he

conceded, however, that he did not believe the Property would be used solely for 

residential purposes. Id. at 151a & 157a. Jacobs admitted that he personally had 

never been on the Property or tested the materials being placed on it and did not 

know what the materials were. Id. at 162a & 171a.
6

Koskovich also called William Whitehead (Whitehead), Kiley 

Associates’ soil and environmental scientist. Whitehead had been to the Property 

four times and described the fill as soil, rock, asphalt and concrete; he had not seen 

any exposed steel rebar there. R.R. at 184a-86a & 208a. He understood the materials 

were coming from a demolition/construction project on Interstate 84. Id. at 205a. 

He acknowledged that he has never dealt with solid waste issues, but he did not think 

the materials were solid waste because he did not believe they were hazardous or 

would have an adverse effect on the neighboring soils and waters. Id. at 195a-96a

& 204a. He stated that the source of the material must certify that it is clean fill and 

that Koskovich as the property owner must maintain copies of the certification. Id. 

at 202a-203a. He did not, however, testify that Koskovich had obtained such a 

certification. Id. at 206a. Whitehead explained that while he viewed the fill activity 

as an “operation” that took place on the Property, he did not view the Property itself 

as a formalized “facility” for such activity. Id.

Objectors presented Thomas Shepstone (Shepstone) as an expert in 

zoning and land use. He owns a planning and research consulting firm and has 

written and administered zoning ordinances for several decades. R.R. at 223a. He 

averred that a zoning permit as required in Section 707, which sets out performance 

standards for grading and filling, cannot be granted directly for that purpose alone 

in the absence of approval for a principal permitted use, conditional use, accessory 

use, or special exception based on the provisions in the Ordinance that govern the 

designated district. Id. at 226a. He explained that the process requires the applicant

first secure a permit for the proposed use, then ensure compliance with the standards 

of Section 707 if grading and filling is part of the project. Id. at 227a. 
7

Shepstone stated that he had not trespassed on the Property to examine 

the fill but had driven by twice. R.R. at 227a. He described the site as “being used 

as a disposal site for . . . concrete rubble and the like.” Id. His understanding of the 

Ordinance was that the current use of the Property as a fill site was not allowed in 

the RD area but is allowed in the Township’s MU area as a solid waste facility. Id. 

at 228a-29a. He viewed the material being used as fill on the Property as solid waste 

pursuant to the Ordinance, not clean fill.5 Id. at 230a.

Charles Tufano (Tufano), an objector, also testified. He lives across 

the street from the Property. R.R. at 242a. Since 2019, he has observed dumping of 

“hundreds of truckloads of material coming off [Interstate] 84” and believes the 

Property is being used as a general dumping site in the area although he does not 

know if the dumping is with or without Koskovich’s permission. Id. at 243a & 251a. 

He has seen and photographed exposed steel rebar from his property across the street

and his pictures were entered into evidence. Id. at 244a.

In a December 2020 decision, the Board unanimously upheld the 

zoning officer’s denial of Koskovich’s zoning permit application. R.R. at 293a-97a. 

The Board concluded that the road demolition materials on the Property were solid 

waste that was not allowed to be deposited or stored in the RD area under the 

Ordinance. Id. at 297. The Board noted that even though Section 707 of the 

Ordinance, which provides performance standards for grading and filling, had been 

the subject of hearing testimony, Koskovich’s zoning permit application had not 

mentioned Section 707. Id. The Board therefore did not address whether Section 

707 could constitute an independent basis for a zoning permit. Id.

5 The Ordinance defines “solid waste” as: “Waste, including, but not limited to, municipal, 

residual, construction/demolition or hazardous wastes (as defined by [25 Pa. Code § 271.1]) 

including solid, liquid, semisolid or contained gaseous materials.” Ordinance § 303.
8

Koskovich appealed to the trial court, which heard arguments and 

received briefs but took no additional evidence. R.R. at 346a. In a November 2021 

decision, the trial court upheld the Board’s determination that the material on the 

Property was solid waste, the storage or deposit of which is not allowed in the RD 

area. Id. at 359a-60a. As such, the trial court agreed with the Board that although 

Section 707 pertains to grading and filling, it could not serve as an independent basis 

for a zoning permit for that activity; rather, the activity must be related to a use 

allowed by the Ordinance. Id. 

Koskovich timely appealed to this Court. He argues on appeal that the 

fill in question was “clean fill” and not “solid waste”; that grading/filling is not a 

“use” under the Ordinance, but is an activity that does not require a special exception 

or zoning permit; and, more generally, that the Board abused its discretion in making 

unsupported factual findings and erred as a matter of law in applying the wrong 

standards and factors in denying a permit for grading/filling.

II. Discussion 

Where the trial court does not take any additional evidence, appellate 

review of the decision of a zoning hearing board is limited to determining whether 

the board abused its discretion or committed legal error. Twp. of Exeter v. Zoning 

Hearing Bd. of Exeter Twp., 962 A.2d 653, 659 (Pa. 2009). With regard to legal 

error, where a word or phrase in a zoning ordinance is defined in the ordinance, a 

court is bound by that definition. Slice of Life, LLC v. Hamilton Twp. Zoning 

Hearing Bd., 207 A.3d 886, 899 (Pa. 2019) (citing Hughes v. Sch. Dist. of Pittsburgh, 

108 A.2d 698, 699 (Pa. 1954)). A zoning hearing board’s interpretation of its own 

zoning ordinance is entitled to great weight and deference because, “as the entity 
9

charged with administering the zoning ordinance, the board possesses knowledge 

and expertise in interpreting that ordinance.” Risker v. Smith Twp. Zoning Hearing 

Bd., 886 A.2d 727, 731 (Pa. Cmwlth. 2005). Similarly, because a township’s zoning 

officer is charged with the administration and execution of the ordinance, his 

interpretation of the ordinance is “entitled to deference and should not be disregarded 

unless shown to be clearly erroneous.” McIntyre v. Bd. of Supervisors of Shohola 

Twp., 614 A.2d 335, 337 (Pa. Cmwlth. 1992).

With regard to land uses, the Ordinance defines “use” as “[t]he specific 

purpose for which land or a building is designed, arranged, intended, or for which 

land is or may be occupied or maintained.” Ordinance § 303. Section 404.1(A)(1)

of the Ordinance (“Use Regulations”) states:

No land . . . in a particular zoning district shall be used for 

any use which is not specifically listed on the Schedule of 

Uses for that particular district, and only in accord with all 

other requirements of this Ordinance. In other words, any 

use not allowed as a principal permitted use, accessory 

use, conditional use or special exception, or allowed by the 

Zoning Hearing Board in accord with §404.2 [“Special 

Exception for Use Not Specified in Schedule of Uses”] 

within a particular zoning district, shall be deemed to be 

prohibited within that zoning district.

Ordinance § 404.1(A)(1). Likewise, the Ordinance’s Schedule of Uses for the RD 

area states: “Uses not specifically listed by this schedule shall not be permitted in 

the RD District except as approved in accord with § 404.2 [Special Exception for 

Use Not Specified in Schedule of Uses].”6 See Ordinance Art. IV (Schedules of 

Uses).

6 As addressed above, this matter was previously adjudicated unsuitable for recourse to a 

special exception. 
10

The Ordinance differentiates between uses and performance standards. 

Article VII as a whole contains performance standards for various purposes, 

including to ensure public and environmental health and safety and to prevent 

nuisance uses and activities. See Ordinance § 701. The Ordinance imposes such 

standards as specific requirements distinct from and supplemental to formally 

recognized land uses: “any use permitted by this Ordinance may be undertaken and 

maintained if it conforms to all applicable requirements of this Ordinance, including 

the standards in this [Section].” Id. (emphasis added). 

Koskovich provides no authority to support his position that the 

performance standards in the Ordinance are intended to stand on their own as 

authority for a given activity or use even if that activity or use is not allowed in the 

relevant zoning district. Indeed, his argument directly contradicts established 

principles of zoning law concerning the relationship between uses and performance 

standards. See, e.g., Loveall v. Zoning Hearing Bd. of Twp. of Elizabeth, 560 A.2d 

919, 921 (Pa. Cmwlth. 1989) (explaining that where a zoning officer concludes that 

a particular use is allowed, there is an additional affirmative duty on the officer to 

determine whether the use satisfies the ordinance’s performance standards); Foster 

Grading Co. v. Venango Twp. Zoning Hearing Bd., 412 A.2d 647, 648 (Pa. Cmwlth. 

1980) (stating that manufacturing was allowed as a conditional use under the zoning 

ordinance “upon compliance with performance standards set out in the ordinance”). 

Here, the Ordinance’s provisions are consistent with the longstanding 

principle articulated in Loveall and Foster Grading. Article VII, Section 707 

(Grading and/or Filling Operations) states, in pertinent part:

The grading and/or filling of a lot, parcel or any site 

involving cuts and/or fills with an average depth greater 
11

than five (5) feet over an area of one (1) acre or more[7]

shall require a zoning permit when such grading is not 

part of an approved subdivision or land development plan.

Ordinance § 707 (emphasis added). As noted, this Section includes specific 

performance standards for grading and filling on a given property, including rules 

for slopes, stormwater, and erosion and sediment control. See Ordinance § 707.1-

707.6. 

Grading and filling are usually licensed by the DEP but remain subject 

to local zoning laws. We have explained:

Permits for earth disturbance, including the importation of 

fill and which involve more than one acre, must be secured 

through the [DEP]. Issuance of these permits are [sic] 

independent of, and not governed by, local municipal 

zoning ordinances . . . but the activity is nonetheless 

subject to municipal zoning ordinances, which regulate the 

uses permitted to be conducted on property.

Greenview Props. 862, LLC v. Hamilton Twp. Zoning Hearing Bd. (Pa. Cmwlth., 

No. 799 C.D. 2020, filed May 26, 2021), slip op. at 3 n.2, 2021 WL 2135951, at *1 

n.2 (citation omitted).

8

 

As stated above, in light of the Board’s position that Koskovich’s 

application did not cite Section 707, it did not specifically address whether that 

provision may be an independent basis for a zoning permit. R.R. at 297a. However, 

the trial court found that although Section 707 pertains to grading and filling, it could 

not serve as an independent basis for a zoning permit for that activity where the use 

was not otherwise allowed by the Ordinance. Id. at 359a-60a. 

7

It is not in dispute that Koskovich’s filling activities involve an average depth greater than 

five feet over an area of at least one acre.

8 This Court’s unreported memorandum opinions issued after January 15, 2008 may be 

cited for their persuasive value. 210 Pa. Code § 69.414(a).
12

Koskovich argues that Section 707 authorizes a permit solely for 

grading and filling rather than for an underlying use, so long as the activity complies 

with Section 707’s enumerated performance standards. Koskovich’s Br. at 22-24. 

He asserts that requiring a zoning use permit for grading and filling would 

improperly restrict Township landowners. Id. at 27. Objectors reply that Section 

707’s performance standards are not independent of scheduled uses and that the 

Ordinance does not have a mechanism for a landowner to acquire a zoning permit 

for grading and filling without an otherwise allowed use. Objectors’ Br. at 25-30.

We agree with the trial court and Objectors. As set forth above, Section 

707 of the Ordinance requires a zoning permit for grading or filling that is not part 

of an approved subdivision or land development plan. Ordinance § 707. A zoning 

permit acknowledges that a use is permitted under the Ordinance, by right or by 

special exception or conditional use, and is defined in the Ordinance as follows:

Zoning Permit – Indicates that a proposed use, building or 

structure as documented in the development application

will comply with the requirements of this Ordinance. 

Issued by the Zoning Officer for principal permitted uses, 

accessory uses and signs following confirmation of 

compliance with applicable standards, for conditional uses 

following approval by the Board of Supervisors, and for 

special exceptions following approval by the Zoning 

Hearing Board.

Ordinance § 303. Thus, a zoning permit must be issued in relation to an allowed

use.

Koskovich argues that the project in question would comply with the 

specific requirements of Section 707 and that it was not necessary to establish that 

the activity was a use specifically allowed in the RD district. However, Section 707

expressly requires a “zoning permit,” not merely a “permit.” That requirement
13

cannot be isolated from the use schedules and limitations set forth in Article IV of 

the Ordinance and cannot serve as independent authority for a grading and filling 

permit. Where grading/filling is not allowed independently as a use within a 

particular district, or the grading/filling activity is not in conjunction with an

approved subdivision or land development plan (which also presumes compliance 

with those zoning uses allowed within the district), a zoning permit cannot be issued. 

Neither circumstance is present here.

Koskovich disputes the Board’s determinations that the material placed 

on the Property was solid waste rather than clean fill and that placement of the 

material constituted a use that would need to be allowed in the RD area rather than 

merely an activity that might not require compliance with the RD schedule of uses. 

Koskovich’s Br. at 31-39. However, the Board was within its discretion and function 

as factfinder and judge of credibility to accept Objectors’ witnesses’ testimony to 

the contrary and to conclude that the material was solid waste, the “storage” of which

(the closest analog to grading and filling) is not a use allowed in the RD district.

9

 

R.R. at 297a. As stated, even if the Board had erred and the material should have 

been deemed clean fill and its placement on the Property deemed an activity rather 

than a use, Section 707 still requires a “zoning permit,” which in turn requires the 

9 A reviewing court may not substitute its interpretation of the evidence for that of the 

zoning board, which has “expertise in and knowledge of local conditions.” Tidd v. Lower Saucon 

Twp. Zoning Hearing Bd., 118 A.3d 1, 9, 13 (Pa. Cmwlth. 2015) (citations omitted). The zoning 

board’s function is to weigh the evidence and it is the sole judge of the credibility of witnesses and 

the weight afforded their testimony. SPC Co. v. Zoning Bd. of Adjustment of the City of Phila., 

773 A.2d 209, 214 (Pa. Cmwlth. 2001). The appellate court must view the evidence in a light most 

favorable to the prevailing party, which must be given the benefit of all reasonable inferences 

arising from the evidence. Id. When our review is of the Board’s decision, we are not bound by 

the trial court’s decision. See Pham v. Upper Merion Twp. Zoning Hearing Bd., 113 A.3d 879, 

887 (Pa. Cmwlth. 2015). 
14

applicant to establish some use allowed within the appropriate zoning district or an 

approved subdivision or land development plan. 

III. Conclusion

Accordingly, the Board did not err in upholding the zoning officer’s 

denial of Koskovich’s application, and the trial court did not err in affirming the 

Board. We therefore AFFIRM the trial court’s order.

__________________________________

CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frank W. Koskovich, :

Appellant :

:

v. :

:

The Board of Supervisors of The :

Sterling Township, The Sterling :

Township Zoning Hearing Board, :

Charles Tufano and Sandra Tufano, :

husband and wife, Charles A. Landon :

and Donna L. Landon, husband and :

wife, and James Lincoln Arthur and : No. 1441 C.D. 2021

Karen L. Arthur, husband and wife :

O R D E R

AND NOW, this 19th day of April, 2023, the November 16, 2021, 

Order of the Court of Common Pleas of Wayne County is AFFIRMED.

 

__________________________________

CHRISTINE FIZZANO CANNON, Judge