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decided: March 23, 1987.


Appeal from the Order of Commonwealth Court of Pennsylvania at No. 1269 CD 1982, Dated August 16, 1985, Affirming the Order of the Court of Common Pleas of Delaware County at No. 79-17771, Dated May 3, 1982. 91 Pa. Commonwealth Ct. 186, Nix, C.j., and Flaherty, Hutchinson, Zappala and Papadakos, JJ. Larsen and McDermott, JJ., did not participate in the consideration or decision of this case. Papadakos, J., concurs in the result.

Author: Hutchinson

[ 514 Pa. Page 178]


Appellant, the Council of Middletown Township, a second class township, appeals by allowance Commonwealth Court's order affirming a Delaware County Common Pleas order granting preliminary approval to appellee's planned residential development. This appeal presents two issues: (1) are all local zoning ordinances dealing with sewage and sewers invalid because of the General Assembly's preemption of the field through legislation, and (2) what does the

[ 514 Pa. Page 179]

    term "public sanitary sewer system" used in section 309.C.7 of the Middletown Township Zoning Ordinance mean. We hold that the legislature's enactment of the Pennsylvania Sewage Facilities Act*fn1 (Sewage Act) and the provisions of The Clean Streams Law*fn2 which deal with sewage systems have not wholly preempted these fields from local zoning regulation. We also hold that the term "public sanitary sewer system" in section 309.C.7 was not intended to limit "public sanitary sewer systems" to existing government owned systems when, as here, the government has no existing system and has no plans to provide one within the reasonable future. Accordingly, we affirm Commonwealth Court.

I. Facts

Grant J. Benham, now deceased,*fn3 owned a 104.2 acre tract of land in Middletown Township, Delaware County. He wanted to develop the land for residential use.*fn4 In 1978 he submitted to the Township an application to build a Planned Residential Development consisting of thirty-one single family homes and eighty-two townhouses. Since the tract was not served by municipal sewage, the plan also included an on-site sewage plant to serve the community's needs. Following hearings, the Township denied the application on March 24, 1981.*fn5 The Council held that the plan did not comply with section 309.C.7 of the Township's zoning ordinance. That section provides:

[ 514 Pa. Page 180]

In order to qualify under this [zoning] Ordinance, the tract of land must be served by public water and public sanitary sewer systems.

Middletown Twp. Zoning Ordinance § 309.C.7. The Council held that a "public sanitary sewer system" must be municipally owned and no privately owned system is acceptable. The record shows that municipal sewer service is not likely to be extended to this area before the year 2000. Benham proposed several modifications to his plan to address the Township's concerns. These proposals included dedication of the on-site sewage facility to the Township, the Sewer Authority or any other body acceptable to the Township, ownership and operation of the facility by the Homeowner's Association, and joint public and private ownership and operation of the facility. All offers were refused.

Benham appealed to Delaware County Common Pleas. That court held that the term "public sanitary sewer system," not further defined in the ordinance, should be broadly interpreted. It then held that governmental ownership is not required and that the system proposed by Benham was a "public sanitary sewer system" because it provided sanitary sewers for the residents of the development and may be expanded to serve future adjoining developments. Alternately, Common Pleas held that the legislature had preempted the sewage field and the zoning ordinance itself was invalid.

Commonwealth Court affirmed, 91 Pa. Commw. 186, 496 A.2d 1293. That court accepted appellant's interpretation that a "public sanitary sewer system" must be government owned. However, it agreed with Common Pleas that the field has been preempted by state legislation. Therefore, it held section 309.C.7 void.

II. Preemption

We will address the preemption issue first. The state is not presumed to have preempted a field merely by legislating in it. The General Assembly must clearly show its intent to preempt a field in which it has legislated. Retail Master Bakers Association v. Allegheny County,

[ 514 Pa. Page 181400]

Pa. 1, 161 A.2d 36 (1960). See also United Tavern Owners v. Philadelphia School District, 441 Pa. 274, 272 A.2d 868 (1971) (Opinion Announcing the Judgment of the Court). The test for preemption in this Commonwealth is well established. Either the statute must state on its face that local legislation is forbidden, or "indicate[] an intention on the part of the legislature that it should not be supplemented by municipal bodies." Western Pennsylvania Restaurant Association v. Pittsburgh, 366 Pa. 374, 381, 77 A.2d 616, 620 (1951). See also Harris-Walsh, Inc. v. Dickson City Borough, 420 Pa. 259, 216 A.2d 329 (1966). If the General Assembly has preempted a field, the state has retained all regulatory and legislative power for itself and no local legislation is permitted. Western Pennsylvania Restaurant Association, supra.

Analyzing the Sewage Act, we believe that the legislature did not intend to preempt this field.*fn6 The Sewage Act does not state that municipal legislation is forbidden. Indeed, the Sewage Act actually incorporates it into the overall sewage regulation scheme. Section 8 of the Sewage Act*fn7 outlines the powers and duties of local agencies.*fn8 These local agencies are assigned the task of administering section 7 of the Sewage Act*fn9 dealing with sewage facility permits. Their specific tasks include inspecting facilities, enforcing and restraining violations of the Sewage Act, and setting and collecting fees from operators.*fn10 In addition,

[a]ny other rules or regulations which the local agency deems necessary in order to administer and enforce section

[ 514 Pa. Page 1827]

may only be adopted if they are consistent with this act and the rules and regulations adopted hereunder.

Sewage Act, supra at § 8(b)(9), as amended, 35 P.S. § 750.8(b)(9). The Environmental Quality Board has included a similar provision in regulations it has established pursuant to the Sewage Act. 25 Pa.Code § 71.35. Instead of forbidding all municipal legislation on sewage facilities, the legislature has provided for it as an essential component of the statewide regulatory scheme. Reading the Sewage Act as a whole, we conclude that the ...

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