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BAKERSTOWN LIQUID BURNERS v. RICHLAND TOWNSHIP ET AL. CONCERNED CITIZENS ACTION PROGRAM (07/21/82)

decided: July 21, 1982.

BAKERSTOWN LIQUID BURNERS, INC. ET AL.
v.
RICHLAND TOWNSHIP ET AL. CONCERNED CITIZENS ACTION PROGRAM, APPELLANT. BAKERSTOWN LIQUID BURNERS, INC. ET AL. V. DENIS RANALLI ET AL. CONCERNED CITIZENS ACTION PROGRAM, APPELLANT



Appeals from the Orders of the Court of Common Pleas of Allegheny County in cases of Bakerstown Liquid Burners, Inc., a corporation, Bakerstown Container Corporation, Inc., a corporation, and Elizabeth C. Smith v. Richland Township, a political subdivision, No. SA 158 of 1981; and in case of Bakerstown Liquid Burners, Inc., a corporation, Bakerstown Container Corporation, a corporation, and Elizabeth C. Smith, an individual v. Denis Ranalli, an individual, and Richland Township, a political subdivision, No. GD 81-03977A.

COUNSEL

Joseph M. Ludwig, Ludwig & Ackman, for appellant.

Arthur Feldstein, with him Stanley M. Stein, Feldstein, Grinberg, Stein & McKee, for appellee, Bakerstown Liquid Burners, Inc. et al.

Gene E. Arnold, Meyer, Flaherty & Arnold, for appellee, Richland Township et al.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 67 Pa. Commw. Page 560]

In these consolidated cases, the Concerned Citizens Action Program, intervenor below, appeals from two orders of the Court of Common Pleas of Allegheny County sustaining the appeal of Bakerstown Container Corporation (Bakerstown) from the revocation

[ 67 Pa. Commw. Page 561]

    by the Richland Township Zoning Officer*fn1 of certain permits previously issued to Bakerstown and compelling, by means of a writ of mandamus, the reissuance of the permits. Because we agree with the appellants that the Court of Common Pleas was without jurisdiction in this matter and that Bakerstown's appeal should have been taken to the township zoning hearing board, we will grant the relief requested by the appellants and will vacate the order of the Court of Common Pleas and remand the record with directions that the cause be transferred to the zoning hearing board for further proceedings.

In June, 1980, Bakerstown, by its president Vance Smith, after consultation with Denis Ranalli, the Richland Township Zoning Officer, applied for and was granted a building permit authorizing the construction of an incinerator to be used in conjunction with Bakerstown's steel drum reconditioning plant. Specifically, Smith represented to Ranalli and to the township planning commission that the proposed incinerator was desirable in that its extremely high temperature of operation would allow the safe disposal of paint by-product residues found in the steel drums reconditioned by Bakerstown. At a cost of some $200,000, the proposed incinerator was subsequently constructed and an occupancy permit was issued on December 3, 1980. Prior to the commencement of its operation, however, it came to the attention of Ranalli that Bakerstown intended to incinerate

[ 67 Pa. Commw. Page 562]

    at the site, in addition to the paint by-product residues, liquid wastes generated by other local industrial concerns and, by letter dated January 21, 1981, Ranalli informed Bakerstown that the building and occupancy permits previously issued were revoked.

Bakerstown sought review of this act of revocation by two means. In February, 1981, Bakerstown filed a "Notice of Zoning Appeal" in the Court of Common Pleas of Allegheny County. At the same time Bakerstown filed a complaint in the nature of an application for the issuance of a writ of mandamus. These actions were consolidated and two hearings were conducted by the Honorable Nicholas P. Papadakos for the court below on April 7 and 8, 1981.

At the hearings Smith and Ranalli testified to the facts described above and Smith testified that it had always been his intention to use the newly constructed incinerator apparatus primarily for the disposal of wastes generated by the drum reconditioning process but that preliminary experimentation with the incineration of these paint by-product residues had revealed the necessity of combining the residues with an industrial solvent in order to reduce their viscosity and permit their introduction into the combustion chamber. Smith further testified that contaminated solvents produced as a waste product by other industrial processes were suitable for the purpose of thinning the paint residues and that he now proposed to incinerate, for a fee to be charged to the producers, such contaminated solvents. Ranalli testified to his belief that the permits were properly revoked because the issuance of permits had been predicated on the representations of ...


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