Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Moyer's Landfill, Inc. v. Zoning Hearing Board of Lower Providence Township, No. 78-11852.
Steven H. Lupin, Hamburg, Rubin, Mullin & Maxwell, for appellant.
Frederic M. Wentz, McGrory, Wentz, Fernandez & Albright, for appellee.
President Judge Crumlish, Jr. and Judges Rogers, Blatt, Craig and MacPhail. Opinion by Judge Rogers. Judge MacPhail concurs in the result only.
Moyer's Landfill, Inc. (Moyer), a landowner which seeks zoning approval to use its land in Lower Providence Township, Montgomery County, as a sanitary landfill, and the township*fn1 have each appealed from an order of the Court of Common Pleas of Montgomery County. The order complained of reversed and the township zoning hearing board's decision that Moyer was required to pay the fees of lawyers and an engineer employed by the township in opposing Moyer's applications; but upheld the board's decision that Moyer was not entitled to establish the proposed sanitary landfill.
Lower Providence Township's appeal raises the question of the propriety of the trial court's holding and order that the fees of the township's and the zoning hearing board's solicitors and the township's consulting engineer for services in the zoning litigation, in a total amount in excess of $25,000, could not be
charged to Moyer. We affirm this aspect of the trial court's order. Section 907 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, (MPC) 53 P.S. § 10907 authorizes zoning hearing boards to employ legal counsel "[w]ithin the limits of funds appropriated by the governing body." The matter of the fees of a zoning hearing board's counsel was the subject of Borough of Brookhaven v. BP Oil Company, 48 Pa. Commonwealth Ct. 128, 409 A.2d 494 (1979), where we held that Section 907 provided sufficient indication that the legislature did not intend that the fees of zoning hearing board solicitors should be charged to the persons who present causes for zoning hearing board decisions.
Section 618 of the MPC, 53 P.S. § 10618, authorizes the governing body to appropriate money to support or oppose decisions of the zoning hearing board. The township solicitor's participation in this case was directed entirely to opposing Moyer's applications for board and court approval of its project. His fees for thus representing the township were properly payable by the township and not properly chargeable to Moyer as a cost of the proceedings. The township engineer's services were to the same purpose and he must also be paid by the township.
In its appeals from the denial of its zoning applications first, to the zoning hearing board and then to the common pleas court, Moyer raised, among others, the questions of: (1) whether the township zoning ordinance at the time Moyer applied for the zoning permit was without effect because it unconstitutionally excluded from the township the legitimate use of land for the establishment and operation of a sanitary landfill and (2) whether Moyer was entitled to a special exception
to use its land for a sanitary landfill.*fn2 These claims will be the principal subjects of this opinion.
In 1974, Moyer acquired a tract of land containing about 47 acres of land in Lower Providence Township on which it has since conducted a sanitary landfill. For many years before Moyer's acquisition -- before
there was any zoning in Lower Providence Township or any state regulation of dumping sites and activities -- part of this tract was used by its then owners as a dump. After zoning was adopted in Lower Providence Township in 1955 the dumping enterprise continued as a nonconforming use. The zoning ordinance totally excluded the use of land for dumps or sanitary landfills, as they properly came to be called after the imposition of ...