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COMMONWEALTH PENNSYLVANIA v. JOHN D. DIMASCIO (12/04/86)

decided: December 4, 1986.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION
v.
JOHN D. DIMASCIO, BUILDING AND ZONING OFFICER OF THE TOWNSHIP OF WILLISTOWN, AND TOWNSHIP OF WILLISTOWN, APPELLANTS



Appeal No. 11 E.D. Appeal Dkt. 1986 from Order of Commonwealth Court entered December 24, 1985, at No. 2485 C.D. 1984; Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a dissenting opinion.

Author: Per Curiam

[ 512 Pa. Page 626]

ORDER

Order affirmed.

Disposition

Order affirmed.

LARSEN, Justice, dissenting.

I dissent to the majority's per curiam affirmance of the Commonwealth Court.

The Commonwealth of Pennsylvania, Department of Transportation (Penn DOT), appellee, was in the process of constructing a "Domar" building*fn1 for the storage of road salt in the Township of Willistown when appellants, the Township and its building/zoning officer, served upon Penn DOT a cease and desist order intended to stop further work on the project until a building permit had been applied for and issued in accordance with local zoning ordinances. Penn DOT then filed a petition for review addressed to the original jurisdiction of the Commonwealth Court seeking to enjoin appellees from interfering with the construction of the Domar building.

[ 512 Pa. Page 627]

Appellants argued that Penn DOT is subject to its local zoning ordinances and that the Commonwealth Court should resolve any conflict between its authority to enact zoning ordinances and Penn DOT's authority to construct highway facilities by reference to this Court's decision in Commonwealth, Department of General Services v. Page 627} Ogontz Area Neighbors Association, 505 Pa. 614, 483 A.2d 448 (1984). In that case, we applied principles of statutory construction to the respective enabling legislation to determine the legislative intent, and we determined that the Department of Public Welfare was subject to the jurisdiction of the local zoning board, and that in case of conflict between DPW's land use plans and the local zoning scheme, the latter would prevail.

Penn DOT argued, however, that its legislative grant of authority unequivocally established that the General Assembly "has granted to Penn DOT a position of total preeminence over any of the various classes of municipalities in the Commonwealth." Brief for Appellee at 13.

The Commonwealth Court held that appellant's had no authority to regulate or restrict Penn DOT's use of its land within the Township of Willistown's boundaries, and enjoined appellants from interfering with the construction or use of the Domar building. That court did not reach the Ogontz issue or address Penn DOT's contention that it was totally exempt from land use regulations and zoning ordinances of all municipalities. Instead, it based its reasoning on section 702 of the Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. ยง 65762, which provides in pertinent part:

No ordinance, by-law, rule or regulation shall be adopted which in any manner restricts, interferes with, hinders or affects the operation of any other political subdivision or ...


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