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decided: June 27, 1986.


Appeal from the Order of the Commonwealth Court of Pennsylvania dated December 24, 1984, in case No. 782 C.D. 1984, which reversed the Order of the Court of Common Pleas of Delaware County, dated February 7, 1984 in case No. 83-7112 in declaratory judgment, Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Papadakos, J., filed a dissenting opinion in which Larsen, J., joined.

Author: Zappala

[ 511 Pa. Page 68]


The County of Delaware appeals by allowance a decision of the Commonwealth Court, 86 Pa. Commw. 501, 485 A.2d 535, holding that the County is subject to the zoning ordinance of Middletown Township with regard to a proposed solid waste disposal facility.

The County proposes to construct a plant for the conversion of solid waste to energy on a 212 acre parcel of land which it owns in Middletown Township. As successor to the Institution District of Delaware County, the County operates the Fair Acres Geriatric Center Complex on this site. The essence of the County's plan is to use the energy generated by the proposed conversion plant to heat and cool the Geriatric Center, thereby reducing the cost of producing energy from fossil fuels and the amount of solid waste which must be transported to approved landfill sites. In June of 1983 the Township formally advised the County of its objections to the proposed plant and its opinion that the proposed use would violate the Township's zoning ordinance. The County filed an action for Declaratory Judgment claiming that it was not subject to the zoning ordinance or other permitting requirements of the Township.

The Court of Common Pleas of Delaware County held that this Court's decision in Middletown Township v. Delaware County Institution District, 450 Pa. 282, 299 A.2d 599 (1973) controlled the case at bar. That case, involving the same property, established that the Institution District was not subject to the height restrictions of the Township zoning ordinance in constructing a new facility at the Geriatric Center. We found that the Township's zoning power, derived from the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, art. I, § 101 et seq., 53

[ 511 Pa. Page 69]

P.S. § 10101 et seq., was circumscribed by Section 702 of the Second Class Township Code, Act of May 1, 1933, P.L. 103, art. VII, § 702, cl. LXII, added August 27, 1963, P.L. 1280, 11, 53 P.S. § 65762. Section 702 provides that "[n]o ordinance, by-law, rule or regulation shall be adopted which in any manner restricts, interfers [sic] with, hinders or affects the operation of any other political subdivision or instrumentality of the Commonwealth of Pennsylvania." This provision was characterized as demonstrating "a definite intent to liberate 'other political subdivisions' of the Commonwealth from the restrictions of local township zoning ordinances." 450 Pa. at 289, 299 A.2d at 603.

Common Pleas Court also relied on City of Pittsburgh v. Commonwealth of Pennsylvania, 468 Pa. 174, 360 A.2d 607 (1976), noting that in that case we cited the Middletown Township case as one in which legislative intent was used to determine if the institution district was subject to local zoning regulations. Applying the City of Pittsburgh "balancing test" the court held that "a statute can over-ride a municipality's zoning ordinance by inclusion of the power of eminent domain to the state agency or by clear language showing such over-riding intent." Slip opinion at 9. Finding such a grant of eminent domain power to the County and noting the County's area-wide waste disposal obligations under the Solid Waste Management Act of 1968, the court struck the balance in favor of the County's powers over the zoning power of the Township.

On appeal, Commonwealth Court agreed with the Township that because it is now a home rule municipality, having adopted a charter pursuant to the Home Rule Charter and Optional Plans Law, Act of April 13, 1972, No. 62 §§ 101-1309, 53 P.S. §§ 1-101 -- 1-1309, in 1978, its governing powers are no longer subject to the limitations contained in Section 702 of the Second Class Township Code. The court then followed the rationale of this Court's most recent case involving a conflict between a municipality's zoning power and the authority of another Commonwealth

[ 511 Pa. Page 70]

    agency, Commonwealth of Pennsylvania, Department of General Services v. Ogontz Area Neighbors Association, 505 Pa. 614, 483 A.2d 448 (1984). In Ogontz we overruled City of Pittsburgh insofar as it held that the grant of eminent domain power could be taken as an indication of legislative intent that the agency granted that power could override local zoning regulations. Id., 505 Pa. at 626, 483 A.2d at 454. The court determined that it could discern neither an express intent nor an implicit intent of the legislature that the County may override local zoning regulations. Comparing the consequences of the competing interpretations, the court found it more compatible with the powers granted to both the County and the Township to enforce the Township's zoning regulations.

In general it is true that the adoption of a home rule charter acts to remove a municipality from the operation of the code provisions enumerating the powers of that particular class of municipality. Whereas previously the law held that municipalities were merely agencies instituted by the sovereign and exercising only those powers specifically granted to them, see e.g. Philadelphia v. Fox, 64 Pa. 169 (1870), under the present Constitution and implementing legislation, "[a] municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time." Pa. Const. Art. 9, § 2. See also 53 P.S. § 1-301. Furthermore, "[a]ll grants of municipal power to municipalities governed by a home rule charter under this act, whether in the form of specific enumeration or general terms, shall be liberally construed in favor of the municipality." 53 P.S. § 1-301. In analyzing a ...

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