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decided: September 8, 1987.


Appeals from the Order of the Court of Common Pleas of Montgomery County in the case of Township of Plymouth v. County of Montgomery, Nos. 85-19292 and 85-19293.


Stephen M. Feldman, with him, Arthur Lefkoe, for appellant.

Bruce W. Kauffman, with him, Sheryl L. Auerbach, Barbara Anisko, James J. Greenfield, Dilworth, Paxson, Kalish & Kauffman, for appellee.

Frederic M. Wentz, with him, Bruce J. Eckel, Montgomery County Solicitor's Office, for appellee.

President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle and Barry. Opinion by Judge Craig. Judge MacPhail concurs in the result only.

Author: Craig

[ 109 Pa. Commw. Page 202]

In this case, where a proposed county refuse disposal plant faces prohibition by township enactments, we

[ 109 Pa. Commw. Page 203]

    must recognize statutory and judicial distinctions between ordinance provisions governing where the location of the facility may be (zoning provisions) and, on the other hand, how it may be technically designed and operated (operational regulations).

Such an analysis, mindful of a meaningful classification of local enactments, is necessary to resolve this case's two chief issues:

1. Did the trial court, in an equity and declaratory judgment proceeding, have subject matter jurisdiction to decide ordinance validity questions without requiring the county first to exhaust administrative remedies for the invalidation of zoning provisions under the Pennsylvania Municipalities Planning Act (MPC)?*fn1

2. Has the Solid Waste Management Act*fn2 preempted the township's power to enact and enforce both the operational regulations and the zoning provisions on which it seeks to rely?

The Proceedings

In the Court of Common Pleas of Montgomery County, Plymouth Township simultaneously filed declaratory judgment and equity actions against Montgomery County, seeking a declaration that the county's proposed 1200-ton-per-day resource recovery facility, a trash-to-steam refuse disposal plant, would violate township ordinances, and also seeking an injunction to bar the county from further action to effectuate that project.

[ 109 Pa. Commw. Page 204]

After Judge Corso denied the township's request for a temporary restraining order, the county responded to the complaints and, in the equity action, by counterclaim sought to have the court invalidate the ordinances and enjoin the township from blocking construction and operation of the proposed plant.

Following the court's rejection of the township's preliminary objections to the counterclaim, the parties stipulated to the consolidation of the two cases and agreed to an initial trial phase limited to evidence pertinent to the issues of jurisdiction and preemption.

After a thorough hearing, the trial judge, Judge Bucher, issued an adjudication in which he adopted numerous detailed findings of fact and conclusions of law, pursuant to which he ruled the questioned ordinance provisions to be unenforceable with respect to the county's proposed plant. He granted the county's counterclaim by enjoining the township from taking any action against the county's project other than comments and objections to the Department of Environmental Resources (DER) and the Environmental Hearing Board. He confirmed that decision following post-trial motions.

Following the township's appeals to this court, the county sought the application of extraordinary jurisdiction by the Supreme Court, which remanded the case to this court for expedited disposition.


This court, after reviewing the record, discerns no abuse of discretion by the trial judge with respect to the findings of fact, in that the record contains substantial evidence supporting all of them. Reference to specific findings will follow, as pertinent.

A condensed chronology of events, drawn from those findings, can provide the factual background for analysis. In October, 1982, the township, by resolution, authorized

[ 109 Pa. Commw. Page 205]

    the county to develop a countywide waste management plan under the SWMA. After the county, in 1983 and 1984, in consultation with the municipalities, considered the establishment of an 1800-ton-per-day plant in the township for the district in which the township was located, a Montgomery County Solid Waste Management Committee, on which the township was represented, proceeded in 1985 to prepare a request for proposals (RFP) for a 1200-ton-per-day plant to be located on county-owned property in the township. In February of that year, a letter of the township solicitor indicated that there would be "no problem" with that size of plant.

On April 15, 1985, the township adopted an amendment to its zoning ordinance, establishing a 121-acre resource recovery district and allowing a plant of 1200-ton (throughput) capacity, with height maximum at 165 feet.

However, after the development of community opposition to such a plant in the township, the township council proceeded on April 29, 1985 to repeal that zoning amendment, only two weeks after its enactment. Although the stated reason for the repeal was inadequate advertising, the township did not attempt to readvertise it.

After the county had issued the RFP for the 1200-ton facility on May 7, 1985, the township council issued a public declaration on May 29 that they were "unanimously opposed" to any type of solid waste disposal facility within the township.

Thereafter, in connection with township deliberations, the township solicitor advised the council that "limitation of tonnage for trash transfer stations" could be illegal, and also that this court had decided that zoning could not be used to regulate the method of operation of a landfill or trash transfer station.

[ 109 Pa. Commw. Page 206]

On July 8, 1985, the township passed the three ordinances chiefly at issue here, Nos. 934, 936 and 937.

In December, 1985, the county completed and adopted its Municipal Waste Management Plan calling for development of the 1200-ton facility within the district designated by the township for a resource recovery facility. After DER issued preliminary approval of the plan, the county entered into contracts with private companies to construct and operate the plant in question. Seventeen of the twenty-four municipalities in the district have contracted with the county to take their municipal waste for disposal at the plant. The County Industrial Development Authority has also issued bonds to finance the construction costs.

While the DER approval process was underway in 1986, the township advised the county that the township regarded the proposed facility as "illegal" and that the township would not issue a permit for it unless a court invalidated the township ordinances.

This litigation followed.

Provisions of the Ordinances

Ordinance No. 934, the Solid Waste Management Ordinance, is not part of the township's Zoning Ordinance. It regulates the processing and disposal of waste by requiring operators to obtain permits, pay permit application fees up to $100,000 and pay user fees of $.50 per ton for waste processed. That ordinance also regulates the disposal of waste at the facility, and the transportation of waste with respect ...

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