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BOARD SUPERVISORS GREENE TOWNSHIP v. WALTER KUHL (01/21/88)

decided: January 21, 1988.

THE BOARD OF SUPERVISORS OF GREENE TOWNSHIP, APPELLANT
v.
WALTER KUHL, APPELLEE



Appeal from the Order of the Court of Common Pleas of Erie County in the case of Walter Kuhl v. The Board of Supervisors of Greene Township, No. 474-A-1985.

COUNSEL

William T. Jorden, Jorden and White, for appellant.

Randy L. Shapira, Plate, Shapira, Hutzelman, Berlin, May, Walsh and Brabender, for appellee.

Judges Barry and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 112 Pa. Commw. Page 626]

The Board of Supervisors of Greene Township (Supervisors) appeal a decision of the Court of Common Pleas of Erie County directing them to grant Walter Kuhl's (Kuhl) conditional use application for a landfill to be used for solid waste disposal. We affirm.

To understand and properly decide this case, it is necessary to describe at length the events of this landfill lament which occurred prior to and after the conditional use application at issue.

In 1976, Greene Township enacted a comprehensive zoning ordinance (1976 Ordinance). The 1976 Ordinance established an I-1 (industrial parks) district, which allowed solid waste disposal as a conditional use*fn1 if the general provisions for a conditional use in article XVI of the 1976 Ordinance were met and:

1. Providing the rules and regulations of the Commonwealth of Pennsylvania and the Department of Environmental Resources [DER] have been met.

2. Providing all ordinances of the township have been complied with as regards the streets

[ 112 Pa. Commw. Page 627]

    and highways to and from the solid waste operation and any ordinances regarding the construction and operation of a solid waste disposal.

3. Providing any such operation does not provide a nuisance to the health, safety, and welfare of the community.

Art. IX, § 903.B. Solid waste disposal was defined in the 1976 Ordinance as "[a]ny facility, land or other, used for the purpose of disposing of solid wastes of an industrial, commercial or domestic nature." Art. III, § 301.100.

Kuhl made his first application to the Supervisors for a conditional use under the 1976 Ordinance to construct and operate a solid waste landfill on his Route 8 property*fn2 in April, 1981. This application was denied in June, 1981 because Kuhl was not the title owner of the property and had not submitted the requisite maps, plans and text, both required by article XVI, § 1601.A of the 1976 Ordinance, and because he did not show he had met all the rules and requirements of DER. In June, 1981, the Supervisors also voted "to take action to Amend Zoning Ordinance so that they may find a suitable area in the Township for 'landfills.'" Record item K. In July, 1981, Kuhl filed his second application for a conditional use to establish a landfill. The Supervisors denied this application in August, 1981 on the basis that Kuhl had still not obtained the appropriate landfill permit from DER.

The Supervisors published their first proposed amendment to the 1976 Ordinance on July 30, 1981. This amendment would have established an I-2 (heavy industrial) district and would have moved the conditional use for a solid waste facility to this district. The land proposed to be zoned I-2 was composed of two separate

[ 112 Pa. Commw. Page 628]

    areas presently zoned A-1 (agricultural). After a public hearing on August 21, 1981, the Supervisors published a notice on September 8, 1981, stating that they were satisfied with the language of the amendment but were appointing a site selection committee to determine where the I-2 district should be located. The committee presented its report to the Supervisors at their October 13, 1981 meeting. The committee recommended not only the area it felt appropriate for an I-2 district,*fn3 but also suggested changes in the language of the proposed amendment. Record item V. At the same meeting, the Supervisors directed their solicitor to draft a solid waste ordinance. A public hearing on the proposed solid waste ordinance was held February 9, 1982; the ordinance (1982 Solid Waste Ordinance) was adopted by the Supervisors at a meeting convened immediately after.

In March, 1982, the Supervisors hired a professional planner to work with the site selection committee to find an appropriate area for the I-2 district. After a number of meetings and public hearings, a site was chosen adjacent to the current I-1 district*fn4 and a public hearing again held to consider the proposed amendment to the 1976 ordinance and the new proposed site. Subsequently, at their January 10, 1984 meeting, the Supervisors passed a resolution removing solid waste landfills from the conditional uses in the proposed I-2 district and directed the Greene Township Planning Commission

[ 112 Pa. Commw. Page 629]

    and the site selection committee "to create a new district designed for the location of landfill uses." Record item R1. Nine sites were recommended to the Supervisors, two being the current I-1 district and the proposed I-2 district. A public hearing was held on July 25, 1984 at which the amendment to the 1976 Ordinance proposed on August 21, 1981, with the addition of an L-1 (landfill) district and seven of the nine proposed landfill district sites, was considered.*fn5

On October 1, 1984, Kuhl filed his third application for a conditional use under the 1976 Ordinance to establish a solid waste landfill on his Route 8 property. A hearing on the application was held on December 18, 1984. On January 11, 1985, the Supervisors issued their opinion denying Kuhl's application. The Supervisors made the following statement: "It thus appears that the conditions which Mr. Kuhl was unable to meet on his prior request for conditional use approval have now been satisfied." Record item H2. However, they denied the application on the basis of the "pending ordinance doctrine," concluding:

[A] comprehensive planning process with respect to proposed amendments to the Greene Township Zoning Ordinance to designate other areas of the township for landfill uses was underway before this particular request was filed with the Township, and public hearings on specific proposed amendments were being advertised in accordance with law at the very time that Mr. Kuhl's conditional use application for this property was filed.

[ 112 Pa. Commw. Page 630]

Solid Waste Ordinance), and the mineral extraction ordinance.

The final version contained no I-2 or L-1 district. The old I-1 district, article IX, was repealed and a new I-1 district, article X, adopted. The area in the new I-1 district included all the area in the old I-1 district plus additional area of roughly the same size. Landfills for solid waste disposal ...


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