Appeal from the Order of the Court of Common Pleas of Erie County in case of Greene Landfill, Inc. v. Greene Township Zoning Hearing Board, No. 666-A 1978.
William H. Burke, with him William H. Eckert, and Silin, Eckert & Burke, for appellant.
R. Perrin Baker, with him William T. Jorden, for appellees.
Judges Crumlish, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Craig.
[ 46 Pa. Commw. Page 603]
This zoning appeal by Greene Landfill, Inc. (Landfill) involves a decision of the Greene Township Zoning Hearing Board (board) which dismissed Landfill's appeal from the township zoning officer's failure to grant a permit for a sanitary landfill; the board found that Landfill had withdrawn its application in September, 1976 and therefore concluded that the appeal, taken in December, 1977, was "untimely." The Court of Common Pleas of Erie County dismissed Landfill's appeal from the board upon the sole express ground that Landfill was collaterally estopped from asserting the pendency of its application for a permit.
The history of this case began with an exchange of communications in 1975, after which Landfill proceeded in August, 1976 to file applications for sanitary landfill permits with township officials in accordance with a purported ordinance governing landfills, which the township solicitor had supplied -- in error, as it developed, because the ordinance had never been enacted.
[ 46 Pa. Commw. Page 604]
In September, 1976 Landfill's secretary, an attorney, sent a letter to the township solicitor after Landfill had received its permit from the Pennsylvania Department of Environmental Resources (DER). The letter took the position that the state laws and DER's regulations had preempted the field so that "no permits or other permissions or authorization from Greene Township are necessary. . . ." Among other things, the letter also stated:
All prior applications and correspondence to the Greene Township Supervisors are hereby amended [sic] to incorporate this paragraph, its position being that all submittals to the Greene Township Supervisors are for informational purposes only. . . .
Landfill followed up the letter by beginning construction without any township permit. The township then obtained from the Court of Common Pleas of Erie County an injunction restraining construction. Relevant to this case is the fact that, during the injunction hearing, Landfill's attorney stipulated of record as follows:
It is stipulated that the Defendant did commence construction of the Landfill prior to applying for and obtaining his own permit from Greene Township and/or its officers.
We affirmed the injunction order in Greene Township v. Kuhl, 32 Pa. Commonwealth Ct. 592, 379 A.2d 1383 (1977), holding that state regulation of landfills does not preempt the applicability of the existing township zoning ordinance. Judge Wilkinson pointed out for this court that Landfill's attempt to attack the township zoning ordinance as exclusionary was not properly before us because, under Section 1004(1) of the ...