Summary
stating that this Court must follow the mandate of a zoning ordinance in the absence of a clear intent of the legislature to override a local zoning ordinance
Summary of this case from Holt's Cigar Co., Inc. v. PhiladelphiaOpinion
Argued November 1, 1977
December 8, 1977.
Zoning — Landfill — Pennsylvania Solid Waste Management Act, Act 1968, July 31, P.L. 788 — Preemption — Local zoning requirements — Pennsylvania Municipalities Planning Code, Act 1968, July 31, P.L. 805 — Substantive challenge to zoning ordinance.
1. No intention to preempt the field and prohibit the imposition of local zoning regulations is expressed in the Pennsylvania Solid Waste Management Act, Act 1968, July 31, P.L. 788, and a party securing a permit from the Department of Environmental Resources to operate a sanitary landfill pursuant to that statute must still secure the zoning permits and certificates required by local zoning regulations. [593-4-5]
2. Under the Pennsylvania Municipalities Planning Code, Act 1968, July 31, P.L. 805, the substantive validity of zoning ordinances is subject to challenge only in the prescribed manner to the local zoning hearing board or to the governing body with a request for curative amendment. [595]
Argued November 1, 1977, before President Judge BOWMAN and Judges CRUMLISH, JR., WILKINSON, JR., ROGERS and BLATT.
Appeal, No. 1899 C.D. 1976, from the Order of the Court of Common Pleas of Erie County in case of Greene Township v. Walter Kuhl and/or Greene Landfill, Inc., No. 127 Equity 1976.
Complaint in equity in the Court of Common Pleas of Erie County to enjoin construction and operation of landfill. Injunction issued. CARNEY, P.J. Defendants appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
William H. Burke, with him William H. Eckert, and Silin, Eckert, Burke, Siegel Roseman, for appellants.
William T. Jorden, with him McClure, Dart, Miller, Kelleher White, for appellee.
The principal question in this case is whether permits issued by the state Department of Environmental Resources (DER) for the construction and operation of a sanitary landfill, pursuant to the Pennsylvania Solid Waste Management Act (Act), Act of July 31, 1968, P.L. 788, as amended, 35 P. S. § 6001 et seq., make it unnecessary to secure a zoning certificate or building permit from the municipality, within whose boundaries the landfill is to be located. The court below ruled that it was necessary to secure a local permit. We affirm.
Appellants were issued industrial and solid waste disposal and/or processing facility permits by DER on September 8, 1976. In a letter to appellants dated September 9, 1976, DER's regional environmental protection director confirmed the issuance of the permits and stated that they were "the only permits or plan approvals which will be required for the construction of the landfill." Appellants then began construction of the landfill without acquisition of any municipal permits or certificates. Appellee's petition for a preliminary injunction was granted on September 14, 1976, and continuation of the injunction pending appellant's compliance with the zoning regulations was granted after submission of the matter on the record. This appeal followed.
In our decision as to whether the Act pre-empts the field and prohibits the imposition of local permit requirements for a sanitary landfill, we are bound by the decision of our Supreme Court in City of Pittsburgh v. Commonwealth, 468 Pa. 174, 185, 360 A.2d 607, 613 (1976), in which the Court ruled that the state Bureau of Corrections was not immune from local zoning regulations in its plans for an inmate pre-release center and was required to obtain a certificate of occupancy. The Court, through Justice ROBERTS, stated:
In the absence of explicit language, such as we saw in Pemberton [Appeal, 434 Pa. 249, 252 A.2d 597 (1969)], whereby the Legislature evinces a clear intent to override local zoning regulations, this Court is bound to follow the mandate of the zoning enabling act.
City of Pittsburgh, supra, at 185-86, 360 A.2d at 613.
As observed by Judge CRUMLISH, "the objectives of zoning regulations are far more comprehensive than the objectives of the Act," Quakertown Borough v. Richland Township, 28 Pa. Commw. 180, 183, 368 A.2d 343, 344 (1977). We cannot find anywhere in the Act a clear intent by the legislature to pre-empt the field of local zoning regulations. Rather we agree with the statement of President Judge CARNEY in his opinion in the instant case in the court below that:
[A] local municipality cannot set geological or engineering standards stricter than those established by DER for issuance of its permit. However, factors other than geological ones, such as those involving aesthetics, population density, and accessibility govern the selection of a landfill site, and these factors are the appropriate subject of local land use planning.
Appellants also argue that appellee's zoning ordinance of July 17, 1967, which they claim is applicable here, is invalid since it allegedly excludes landfills from the entire municipality. As expressly set forth in Section 1004(1) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 11004(1), questions of the validity of a zoning ordinance on substantive grounds must be submitted either to the local zoning hearing board or to the governing body with a request for a curative amendment. Neither course has been followed here. Therefore, the issues of whether landfills are totally excluded from the municipality and, if so, whether such exclusion can be justified, are not properly before us at this time.
Accordingly, we will enter the following
ORDER
NOW, December 8, 1977, the order of the Erie County Court of Common Pleas, at No. 127 Equity 1976, dated October 21, 1976, is hereby affirmed.