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QUAKERTOWN BOROUGH v. RICHLAND TOWNSHIP (01/14/77)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 14, 1977.

QUAKERTOWN BOROUGH
v.
RICHLAND TOWNSHIP, ALAN E. YOST, WALTER FOX, ALEC JAMIESON AND JOHN R. BETTERLY. QUAKERTOWN BOROUGH, APPELLANT

Appeal from the Order of the Court of Common Pleas of Bucks County in case of Quakertown Borough v. Richland Township, Alan E. Yost, Walter Fox, Alec Jamieson and John R. Betterly, No. 74-11531-06-6.

COUNSEL

Rodney D. Henry, for appellant.

Richard A. Rosenberger, with him Souder, Rosenberger & Bricker, for appellee.

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

Author: Crumlish

[ 28 Pa. Commw. Page 181]

This is an appeal from an order of the Court of Common Pleas denying the motion of Quakertown Borough (Appellant) for summary judgment, sustaining

[ 28 Pa. Commw. Page 182]

    the preliminary objections of Richland Township (Appellee) and dismissing the complaint.

Appellant's complaint in mandamus alleged that it proposed to build and maintain a public solid waste incinerator and/or trash transfer disposal facility jointly with the Boroughs of Sellersville and Perkasie on a tract of land owned by Appellant in Richland Township pursuant to Section 7 of the Pennsylvania Solid Waste Management Act, Act of July 31, 1968, P.L. 788, as amended, 35 P.S. § 6007 (Act). Subsequently, its applications for zoning and building permits were refused which Appellant contends was contrary to Section 702 of The Second Class Township Code, Act of May 1, 1933, P.L. 103, added by Section 1 of the Act of Aug. 27, 1963, P.L. 1280, 53 P.S. § 65762 (Code). Appellant argued that the issuance of the permits involved no discretionary function, that the delay had caused great financial harm and could cause grave consequences to the health and well-being of its citizens and finally, that it lacked an adequate remedy at law to compel the issuance of the permits.

Appellee's answer alleged non-compliance with its zoning and building ordinances and denied that Section 702 of the Code required issuance of the requested permits. A three-judge panel denied the motion for summary judgment, sustained the demurrer and dismissed the complaint.

Appellant contends that a second-class township cannot impose either its zoning or subdivision ordinances or its building code on land in its township owned and used by another political subdivision, relying on Section 702 of the Code which provides in part:

No ordinance, by-law, rule or regulation shall be adopted which in any manner restricts, interferes with, hinders or affects the operation of any other political subdivision or instrumentality of the Commonwealth of Pennsylvania.

[ 28 Pa. Commw. Page 183]

    meet the requirements of defendants' ordinance on the grounds that the ordinance does not apply to it. If the ordinance does not apply to plaintiff, then plaintiff does not need a permit. Clearly, mandamus is inappropriate.

Affirmed.

Order

And Now, this 14th day of January, 1977, the decision and order of the Court of Common Pleas of Bucks County is hereby affirmed.

Disposition

Affirmed.

19770114

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