Appeal from the Order of the Court of Common Pleas of Berks County in case of Township of Earl, Berks County, Pennsylvania v. Delaware County Solid Waste Authority, No. 5576 Equity Docket, 1986.
Hershel J. Richman, with him, Thomas J. Stukane, David J. Brooman, Cohen, Shapiro, Polisher, Shiekman and Cohen, Of Counsel: Michael F. X. Gillin, for appellant.
Richard L. Orwig, O'Pake, Malsnee & Orwig, for appellee.
Judges Craig, and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Judge Craig.
[ 112 Pa. Commw. Page 78]
The Delaware County Solid Waste Authority appeals a decision of the Court of Common Pleas of Berks County granting the petition of Earl Township for declaratory relief and enjoining the authority in regard to its application before the Department of Environmental Resources (DER) to expand an existing landfill.
The authority raises two issues on appeal. First, procedurally, did the trial court exceed its powers by granting final injunctive relief to the township when the only issue before the court was a preliminary objection in the nature of a demurrer?
Second, substantively, does section 702 of the Second Class Township Code*fn1 (§ 702) prohibit Earl Township from applying its zoning ordinance to the landfill expansion proposed by the authority? In answering this second question we must consider what effect, if any, to
[ 112 Pa. Commw. Page 79]
give in this case to the legislature's recent amendment of § 702 by Act 60 of 1987,*fn2 which -- after institution of this action -- deleted that portion of the language of § 702 that had been held to bar second class townships from enforcing their zoning ordinances against the activities of municipal authorities.
As the appellant authority points out, the trial court has not yet found any facts in this case. The facts alleged by Earl Township in its "Petition for Declaratory Judgment and Special Equitable Relief" (and deemed to be true only for the purpose of the preliminary objection in the nature of a demurrer) are as follows.
Earl Township is a second class township located in Berks County, formed pursuant to and existing under the Second Class Township Code.*fn3 The authority is a municipal authority formed by municipalities located in Delaware County pursuant to the Municipal Authorities Act of 1945.*fn4
In 1985 the authority purchased an existing landfill located in Earl Township known as the Colebrookdale Landfill from a private corporation. Of the approximately 320 acres purchased at that time, DER had approved roughly 59 acres for landfill.
When the authority purchased the landfill, the Earl Township zoning ordinance, as amended, provided that landfill operations be restricted to the township's industrial zoning district. The Colebrookdale Landfill is located in the Woodland-Agricultural-Conservation (WAC) district of the township, in which sanitary landfill operations are unconditionally prohibited, but at the time of purchase the landfill had pre-existing nonconforming
[ 112 Pa. Commw. Page 80]
use status. The authority later acquired properties consisting of pre-existing residential homes, also within the WAC zone, that formed a perimeter around the original landfill.
In 1986 the authority filed an application with DER to expand the area covered by the DER permit for landfill operations. That application, currently under review by DER, includes land outside the area originally purchased, that is, land within the perimeter property acquired by the authority later. The perimeter land, of course, was not subject to any pre-existing nonconforming use as a landfill.
Earl Township filed this action on October 16, 1986, in the court of common pleas seeking (1) a declaration that the township's zoning ordinance prohibits the authority from including any of the perimeter property in its application before DER, (2) an order temporarily restraining the authority from further processing its DER application pending a decision on the declaratory ...