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decided: October 12, 1976.


Appeals from the Orders of the Court of Common Pleas of Berks County in cases of Red Cheek, Inc. v. Supervisors of the Township of Ruscombmanor, No. 283 October Term, 1975; and Red Cheek, Inc. v. Supervisors of Richmond Township, No. 284 October Term, 1975.


Robert J. Johnson, with him Butz, Hudders & Tallman, for appellant.

Paul T. Essig, with him Balmer, Mogel, Speidel & Roland, for appellee, Supervisors of Township of Ruscombmanor.

Donald F. Spang, with him R. Joseph Merkel, and, of counsel, Merkel, Spang & Weidner, for appellee, Supervisors of Richmond Township.

Judges Crumlish, Jr., Wilkinson, Jr., and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 26 Pa. Commw. Page 532]

The appellant, Red Cheek, Inc., is an industrial enterprise organized as a cooperative which produces what are doubtless healthful, tasty and altogether delightful apple juice and apple and peach slices at a facility in the Borough of Fleetwood, Berks County. Red Cheek's raw products of course are nature's gift of apples and peaches. Unfortunately, after the useable parts of the fruit are extracted and processed for Red Cheek's products, there remains an unwanted residue. By contract with the Borough of Fleetwood, which we understand from a passing reference in the record has still eight years to run, Red Cheek has been treating its fruit waste in a primary treatment system located on its property in Fleetwood and the effluent from that system has flowed into the Borough's activated sludge plant and other sewage facilities. It is conceded that Red Cheek's pretreatment facility and the Borough's activated sludge plant do not remove waste from the ultimate discharge in a manner which complies with recent environmental legislation and regulation of the Department of Environmental Resources of the Commonwealth.

Red Cheek, Inc. consulted engineers who have proposed that the fruit wastes, after passing through the Red Cheek's existing primary treatment system, should be disposed of by being pumped to the lagoons where the bacteria would break down the remaining apple and peach juices and leave a clear effluent which would be sprayed on open fields. This plan and system has received the endorsement of Environmental Resources. Unfortunately, however, the 26 acre site proposed for this operation which Red Cheek has under agreement to purchase is not located in the Borough of Fleetwood but rather in the Townships of Richmond and Ruscombmanor, and moreover in residentially zoned districts of those townships. The

[ 26 Pa. Commw. Page 53317]

acres located in the Township of Richmond is in an R-2 district of that township's zoning ordinance in which only dwellings, public parks and playgrounds, schools, churches, public buildings, fire stations and uses accessory to the above are permitted by special exception. The 9 acres located in Ruscombmanor Township are in the R-2A district where only dwellings and a variety of other uses, more industrial, are permitted.

Red Cheek sought from the Supervisors of both townships a curative amendment*fn1 which would permit its fruit waste disposal system to be carried on in the zoning districts which the land it had under agreement was located. The Supervisors of both districts after hearing declined its request and Red Cheek appealed both decisions. The Court of Common Pleas of Berks County, by opinion and orders of Judge Wesner, dismissed Red Cheek's appeals. We consolidated the appeals and affirm both orders.

Red Cheek's arguments are somewhat difficult to follow. It begs the conclusion by contending that its treatment plant proposed to be established in residential districts of Richmond and Ruscombmanor Townships is a primary use of a land rather than a use accessory to its business of producing apple juice and fruit slices. It then says that because neither ordinance contains an explicit provision for the use of any land in either township for the purpose of disposing of waste in the manner proposed that the townships bore the burden of showing what public interest ...

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