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GREENWOOD TOWNSHIP v. KEFO (06/26/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 26, 1980.

GREENWOOD TOWNSHIP, A MUNICIPAL CORPORATION, APPELLANT
v.
KEFO, INC., A PENNSYLVANIA CORPORATION, APPELLEE

Appeal from the Order of the Court of Common Pleas of Crawford County in case of KEFO, Inc., a Pennsylvania Corporation v. Greenwood Township, a municipal corporation, No. 160 February Term, 1978.

COUNSEL

E. Max Weiss, Culbertson, Weiss, Schetroma & Schug, for appellant.

Theodore H. Watts, Pepicelli and Pepicelli, P.C., for appellee.

Judges Wilkinson, Jr., Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 52 Pa. Commw. Page 368]

Greenwood Township (township) appeals from the May 29, 1979 order of the Court of Common Pleas of Crawford County in the declaratory judgment action of appellee KEFO, Inc. (KEFO), which order declared Greenwood Township Ordinance No. 77-3 invalid

[ 52 Pa. Commw. Page 369]

    as unreasonable, unduly repressive and exclusionary.

In March, 1977, KEFO had made public its intention to develop a sanitary landfill in the township. Soon thereafter the township supervisors began steps toward enactment of an ordinance regulating solid waste processing and disposal in the township; after several public meetings attended by KEFO and township representatives, the supervisors gave public notice of intent to consider adoption of the ordinance. On June 28, 1977, the supervisors enacted the ordinance, making it unlawful to operate a solid waste processing or disposal site without a township permit, obtainable only by meeting a number of stated requirements, and also establishing administrative and enforcement procedures and penalties for violation.

KEFO filed its petition for declaratory judgment in January, 1978, pursuant to the Uniform Declaratory Judgments Act (Act) and its supplements (supplemental Act),*fn1 challenging the validity of the ordinance on numerous grounds and seeking a declaration that the ordinance is invalid.

Initially before us is KEFO's motion to quash the township's appeal, based upon the township's failure to file exceptions to the trial court's order within 10 days thereof, as would be appropriate under Pa. R.C.P. No. 1518 relating to equity practice, which is applicable because Section 6 of the supplemental Act, formerly 12 P.S. § 852, provides that, in declaratory judgment actions without a jury trial, "all issues of facts, as well as those of law, may be determined and found by the Court, subject to exceptions and appeal, as in equity cases."

[ 52 Pa. Commw. Page 370]

The lower court order here was not in decree nisi form referable to exceptions, as is appropriate in equity. It stated simply:

AND NOW, May 29, 1979, Greenwood Township Ordinance No. 77 [sic] is declared invalid.

The Supreme Court has addressed a similar situation. In Commonwealth v. Derry Township, 466 Pa. 31, 351 A.2d 606 (1976), that court noted that, as here, the "order contains no findings of fact, no conclusions of law, nor any language which would indicate that the order is a decree nisi, or that the parties were required to file exceptions to perfect a right of appeal." 466 Pa. at 41, 351 A.2d at 611. The court went on to say:

There is nothing on the face of the order which would indicate that it is anything other than a final order and, as such, the requirements of Rule 1518 are not applicable. When the court's order neither comports with the requirements of Rule 1517 nor indicates on its face that the order is a decree nisi, it should not be presumed that exceptions must be filed in order to preserve a right of appeal.

466 Pa. at 41-2, 351 A.2d at 611.

In view of that decision, and this court's decision in Watson v. City of Sharon, 45 Pa. Commonwealth Ct. 285, 406 A.2d 824 (1979), we will not deny the township its appellate rights. We will deny the motion to quash.

A second procedural problem in this case has been eliminated by township counsel's withdrawal, at argument, of the claim that a declaratory judgment proceeding does not lie here.

Turning to the merits of the appeal, we note that the controversy here centers on paragraphs 5 and 6 of Section IV of the ordinance, which establish distance

[ 52 Pa. Commw. Page 371]

    criteria for permissible landfill operations as follows:

Section IV Prohibited Acts

It shall be unlawful for any person, municipality, County or authority to:

5. To operate a solid waste processing or disposal area and dispose, keep, place, store or bury, solid waste on land:

     a. Having a boundary within 500 feet of any industrial or commercial plant, structure, or improvement.

     b. Having a boundary within 1000 feet of any residence.

     c. Having a boundary within 750 feet of any creek, stream, well or other body of water.

6. To operate a solid waste processing or disposal area and dispose, keep, place, store or bury, solid waste on land where the actual disposal operation occurs:

(a) Within 1500 feet of any industrial or commercial plant, structure, or improvement.

(b) Within 2000 feet of any residence.

(c) Within 1500 feet of any creek, stream, well or other body of water.

(d) Within 1000 feet of the cartway of any public road.

There is no dispute that those limitations would preclude the issuance of a permit to KEFO for the

[ 52 Pa. Commw. Page 372]

    site contemplated. Testimony indicated that nine parcels in the township, from one to twenty-five acres in size, would satisfy the criteria. However, engineering testimony was advanced to show that even the two largest of those sites were not of feasible size. That testimony indicated that 50 acres is a minimally appropriate size.

The record makes it apparent that the supervisors made no independent evaluations of KEFO's proposal or of landfills generally, nor did they consult any experts in formulating the ordinance. Testimony by one of the supervisors revealed that they referred to a plan of KEFO's proposed site in drafting the distance restrictions, and also that they had not referred to any technical standards involving landfill operations. He further testified that he was aware at the time the distances were set out that their application would completely eliminate the proposed site.

The lower court stated that "it was obvious . . . that Ordinance 77 [sic] was drafted and keyed to stopping KEFO from constructing the proposed landfill at the site in question, and that the distance restrictions were made so restrictive that operation of a sanitary landfill anywhere in the township was an impossibility."

The trial court thus found, and we agree, that the distance requirements effect a de facto exclusion of landfill operations from the township.

The distance requirements here are similar to the 1000 and 500-foot setbacks, for mushroom houses, condemned in Eller v. Board of Adjustment of London Britain Township, 414 Pa. 1, 198 A.2d 863 (1964). Here the effective total exclusion of landfills from Greenwood Township is an invalidating aspect because it does not have a necessary or reasonable relationship to the police power purposes of the regulation.

[ 52 Pa. Commw. Page 373]

"objection" by the township as it is the absence of a record to support the invalidation of the remainder of the ordinance.

The possible severability of provisions of the ordinance is always germane because the Statutory Construction Act of 1972, at 1 Pa. C.S. § 1925, provides:

The provisions of every statute shall be severable. If any provision of any statute or the application thereof to any person or circumstance is held invalid, the remainder of the statute, and the application of such provisions to other persons or circumstances, shall not be affected thereby, unless the Court finds that the valid provisions of the statutes are so essentially and inseparably connected with, and so depend upon, the void provision or application, that it cannot be presumed the General Assembly would have enacted the remaining valid provisions without the void one; or unless the court finds that the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.

Rules of statutory construction are applicable to statutes and ordinances alike. Appeal of Neshaminy Auto Villa Ltd., 25 Pa. Commonwealth Ct. 129, 358 A.2d 433 (1976). Thus, because the lower court did not make the finding required by 1 Pa. C.S. § 1925, the basis for invalidating the complete ordinance is not present.

Our conclusion should not be understood to constitute our imprimatur as to the validity of the balance of the ordinance.

Accordingly, we will affirm the order appealed from only insofar as it declares paragraphs five (5) and six (6) of Section IV of Greenwood Township Ordinance No. 77-3 invalid, and we will otherwise reverse

[ 52 Pa. Commw. Page 375]

    and remand for such further proceedings as KEFO may elect to pursue. Of course, KEFO has the option of now seeking a permit free of the distance criteria here invalidated but subject to the other ordinance requirements (and subject to any other applicable laws, such as a zoning ordinance, if any) if it does not desire to prolong the litigation as to the ordinance provisions remaining.

Order

And Now, this 26th day of June, 1980, appellee's motion to quash is denied, and the May 29, 1979 order of the Court of Common Pleas of Crawford County, at No. 160 February Term, 1978, is affirmed insofar as it declares paragraphs 5 and 6 of Section IV of Greenwood Township Ordinance No. 77-3 invalid; otherwise, that order is reversed and this case is remanded for proceedings in accordance with the opinion herein.

Disposition

Affirmed in part. Reversed and remanded in part.


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