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WALTER KUHL v. COMMONWEALTH PENNSYLVANIA (11/15/83)

decided: November 15, 1983.

WALTER KUHL, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Erie County in the case of Commonwealth of Pennsylvania v. Walter Kuhl, No. 1761 of 1981.

COUNSEL

Thomas E. Doyle, for appellant.

William T. Jorden, Jorden and White, for appellee.

Judges Rogers, Barry and Barbieri, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 78 Pa. Commw. Page 329]

Walter Kuhl has filed an appeal of a judgment of sentence to pay $1,400 imposed by the Erie County Court of Common Pleas after finding him guilty of the summary offense of violating a township zoning ordinance.

The appellant was charged with operating a landfill in a zoning district of Greene Township where such use was not permitted. A hearing was held before a district justice who found the appellant guilty and imposed a fine of $1,400. The Court of Common Pleas, after a trial de novo, also found the appellant guilty and reimposed the same fine.

The appellant testified that he had sought to register his landfill as a lawful nonconforming use but was refused registration by the township. A township witness testified that the appellant never applied. It is certain that the landfill was not registered and that the appellant did not appeal from the refusal of registration, if his version of this circumstance is factual.

The appellant here contends that the Court of Common Pleas erred in finding him guilty of violating the ordinance: (1) because he possessed a permit of the Department of Environmental Resources for the construction

[ 78 Pa. Commw. Page 330]

    and operation of a landfill so that the Greene Township zoning ordinance has been preempted by the Solid Waste Management Act, Act of July 31, 1968, P.L. 788, as amended, 35 P.S. §§ 6001-6017, and (2) because his landfill is a lawful nonconforming use because it existed before the enactment of the zoning ordinance.

The case of Greene Township v. Walter Kuhl and/or Greene Landfill Inc., 32 Pa. Commonwealth Ct. 592, 379 A.2d 1383 (1977), is directly on point and controls the appellant's first contention. We held in that case that the fact that the Department of Environmental Resources had issued permits for the construction and operation of a landfill did not excuse the landowner from complying with the zoning ordinances of the municipality within whose boundaries the landfill is located.

However, the appellant cites in support of his preemption argument the case of Greensburg Sewage Authority v. Hempfield Township, 5 Pa. Commonwealth Ct. 495, 291 A.2d 318 (1972), where the municipality had sought to regulate the means of sewage disposal by zoning and where we held that the subject was preempted by the Sewage Facilities Act, Act of January 24, 1966, P.L. [1965] 1535, 35 P.S. § 750.1, and the Solid Waste Management Act, supra. This case is quite different from Greensburg Sewage Authority. The Greene ...


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