Appeal from the Order of the Court of Common Pleas of Delaware County in case of County of Delaware v. The Township of Middletown, Delaware County, Pennsylvania; John McKeown, Zoning Officer of The Township of Middletown; Thomas Lowry, Building Inspector of The Township of Middletown, No. 83-7112.
John D. Snyder, with him, William H. Lamb, Lamb, Windle & McErlane, P.C., for appellants.
Francis P. Connors, for appellee.
Judges Doyle, Colins and Palladino, sitting as a panel of three. Opinion by Judge Colins.
[ 86 Pa. Commw. Page 502]
Middletown Township (Township) appeals from an order issued by the Court of Common Pleas of Delaware County, dismissing exceptions to an order entered in favor of Delaware County (County) granting declaratory relief*fn1 against the Township.
The County filed an action for Declaratory Judgment claiming that it was not subject to the zoning ordinances and other permitting ordinances or requirements of the Township.
The site in question consists of 212 acres of land located on Route 352, Middletown Township, whereon the County owns and operates the Fair Acres Geriatric Center Complex (Complex). A proposal to construct a fifty ton per day solid waste-to-energy plant on this property has been approved by the County. This plant will produce steam from the incineration of solid waste, which will be used to heat and air-condition the complex. Presently, the Township does not collect or dispose of any solid waste on behalf of its residents. It has been utilizing the County's facilities and services to dispose of the waste for over twenty years.
The plant will be located to the rear of the complex and will not be visible to motorists passing the site on Route 352. Operation of the plant will decrease the County's reliance on the use of landfills, lower the cost of disposing of waste,*fn2 and reduce the County's dependence on the use of fossil fuels to produce steam to heat and cool the complex.
[ 86 Pa. Commw. Page 503]
In June of 1983 the Township advised the County that it objected to the proposed plant, that the County's property was subject to the zoning ordinances of the Township and that no permits were to be issued for the project.
This site has been the subject of a long term dispute between the County and Township. In 1973 the township, then a second class township, objected to the construction of the geriatric complex on similar grounds. In Middletown Township v. Delaware County Institution District, 450 Pa. 282, 299 A.2d 599 (1973), the Pennsylvania Supreme Court ruled that the zoning ordinances of Middletown Township were not enforceable against Delaware County. The court relied on Section 702 of the Second Class Township Code in reaching its decision.*fn3 Since it is now a home rule ...