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SUMMIT TOWNSHIP TAXPAYERS ASSOCIATION v. SUMMIT TOWNSHIP BOARD SUPERVISORS (02/25/80)

decided: February 25, 1980.

SUMMIT TOWNSHIP TAXPAYERS ASSOCIATION, EDWARD LESLIE AND LILLIAN R. WASIELA, APPELLANTS
v.
SUMMIT TOWNSHIP BOARD OF SUPERVISORS, APPELLEE. ERIE DISPOSAL COMPANY, INTERVENING APPELLEE



Appeal from the Order of the Court of Common Pleas of Erie County in case of In Re: Zoning Appeal of Summit Township Taxpayers Association, Edward Leslie and Lillian R. Wasiela v. Summit Township Board of Supervisors, No. 5471-A-1977.

COUNSEL

Evan E. Adair, of Lund, Fischer, Kennedy & Schleicher, for appellants.

No appearance for appellee.

Richard W. Perhacs, of Ederkin, Martin, Kelly, Messina & Zamboldi, for Intervening Appellee.

Judges Wilkinson, Jr., Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig. This decision was reached prior to the death of President Judge Bowman. Judge DiSalle did not participate in the decision in this case.

Author: Craig

[ 49 Pa. Commw. Page 460]

The Summit Township Taxpayers Association, Edward Leslie and Lillian Wasiela (objectors) appeal from an order of the Court of Common Pleas of Erie County (No. 5471-A-1977) denying the appeal which objectors characterize as taken from the action of the Summit Township (township) Board of Supervisors

[ 49 Pa. Commw. Page 461]

(board), "in stipulating" with respect to the settlement of another zoning appeal (No. 2200-A-1976, Court of Common Pleas of Erie County) which had earlier been taken by Erie Disposal Company (Erie).

In January, 1976, Erie, owner and operator of the Lakeview Landfill located in the township, seeking to expand that landfill onto adjoining property, had filed a substantive challenge to the validity of the township's zoning ordinance by a curative amendment proceeding, in accordance with Sections 1004(1)(b) and 609.1 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11004(1)(b), § 10609.1. Erie had challenged the validity of the ordinance on the ground that it made no provision for the operation of a sanitary landfill within the township. At the time of the challenge, the existing landfill was a legal nonconforming use in an R-2 Residential District.

After notice and hearing, the township's board rejected Erie's proposed curative amendment. Erie appealed from the board's action to the court of common pleas at No. 2200-A-1976, supra. Erie and the township entered into negotiations to resolve the terms and conditions under which the board might allow expansion of the landfill, which had reached its regulated capacity. The negotiations culminated on December 1, 1977, when, after publication and notice, the board held a public meeting and authorized counsel to execute a stipulation settling Erie's zoning appeal. Accordingly, on joint motion of the township and Erie, Judge Lindley R. McClelland of the Court of Common Pleas entered an order of court, at No. 2200-A-1976, sustaining Erie's appeal, ordering the township to issue Erie the necessary zoning permit and ordering Erie to pay royalties to the township and comply with other negotiated conditions for the operation of the sanitary landfill.

[ 49 Pa. Commw. Page 462]

In this case (No. 5471-A-1977), objectors appeal from the township board's authorization of the stipulation in Erie's appeal, characterizing the board action as being, in effect, a zoning ordinance amendment, i.e., an acceptance of the curative amendment. Alternatively, objectors describe the board action as a grant of a variance. The lower court in effect treated objectors' present appeal as one taken, not just ...


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