Appeal from the Order of the Court of Common Pleas of Luzerne County in case of In Re: Appeal of Sugarloaf Sanitary Landfill, Inc., from Decision of Sugarloaf Township Supervisors Regarding Curative Amendment to Section 562 of Sugarloaf Zoning Ordinance, No. 9123 of 1977.
James F. Geddes, Jr., for appellants.
Edmund J. McCullough, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Blatt, DiSalle and Craig. Judges Rogers and MacPhail did not participate.
[ 39 Pa. Commw. Page 412]
This is an appeal by several property owners in Sugarloaf Township (Appellants)*fn1 from the order of the Court of Common Pleas of Luzerne County, dated December 8, 1977, requiring that Section 562 of the Zoning Ordinance of Sugarloaf Township (Ordinance), Luzerne County, Pennsylvania (May 22, 1975), be amended by the curative amendment proposed by Sugarloaf Sanitary Landfill, Inc. (Sugarloaf), and that Sugarloaf's premises be rezoned as MD-Mining District. Sugarloaf's petition for a curative amendment, filed pursuant to Section 1004(1)(b) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11004(1)(b), had been denied by the Sugarloaf Township Board of Supervisors (Board).
Sugarloaf has operated a sanitary landfill on approximately 160 acres of land in Sugarloaf Township since 1967. This property is zoned I-1 General Industrial District. In 1976, after a considerable amount of coal was discovered under some of its recently acquired
[ 39 Pa. Commw. Page 413]
acreage, Sugarloaf filed its petition with the Board to amend Section 562 of the Ordinance by adding paragraph 13 thereto, as follows:
13. Mining, subject to all state and federal laws, rules and regulations and such additional reasonable rules, regulations and requirements as the Zoning Hearing Board may determine.
Section 562 enumerates those uses permitted by special exception in the I-1 General Industrial District and a sanitary landfill is one such use. Paragraph 13, therefore, would also permit mining in that district, a use which Appellants admit is not provided for in the Ordinance, as one permitted by special exception. Faced with the constitutional problem created by the clear absence of mining as a permitted use in Sugarloaf Township, Appellants argue before this Court, as they did before the court below, that mining is a nuisance, that it will adversely affect the health, safety, morals, and welfare of the Township and its residents, and, therefore, that it may be totally excluded throughout the Township. The lower court determined otherwise and concluded that the curative amendment is necessary for the reasonable use of the subject land, that its denial would work an undue hardship, and that its grant would not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity.
Our scope of review in cases such as this, where the court below has taken additional evidence, is to decide whether the court has abused its discretion or made an error of law. Thomas v. Zoning Hearing Board of the Borough of Monroeville, 22 Pa. Commonwealth Ct. 399, 349 A.2d 518 (1975); Swift v. Zoning Hearing Board of Abington Township, 16 Pa. Commonwealth ...