Application for Extraordinary Relief from the Order of the Commonwealth Court entered August 28, 1987 at No. 1961 C.D. 1987 granting the Application for Stay of the Preliminary Injunction Order of the Court of Common Pleas of Washington County, Civil Division entered August 18, 1987, as modified by Order entered August 19, 1987, at No. 87-3909. Pa. Commw. , A.2d (1987).
Stanley R. Geary, James P. Liekar, Pittsburgh, James P. Liekar, Canonsburg, for petitioner.
David G. Reis, Ralph Scalera, Pittsburgh, Scott H. Fergus, Washington, for respondents.
Nix, C.j., and Larsen, Flaherty, McDermott and Papadakos, JJ. Zappala, J., did not participate in the consideration or decision of this case. Papadakos, J., dissents. He would not have accepted plenary jurisdiction of this matter.
The respondents here (hereinafter "Chambers") are landfill operators. They operate their business at several locations
in Pennsylvania. The one at issue here is a 160 acre facility in Chartiers Township. The physical characteristics of this tract are such that the landfill contains two distinct valleys surrounded by a buffer area of varying dimensions no less than 25 feet at any given point. The west valley is comprised of approximately 30 acres and the east valley totals approximately 50 acres. Until the time of this litigation waste disposal had occurred exclusively in the west valley, with soil cover operations primarily taking place in the east valley. However, Chambers had prepared the east valley for eventual dumping, and is presently utilizing this valley in its operations.
The site is located in a portion of Chartiers Township zoned residential, and therefore the operation and maintenance of the landfill is not a use permitted as of right. However, it exists as a legal nonconforming use under the Chartiers Township Zoning Ordinance.
At the turn of the century both valleys were used for burning refuse; and prior to Chambers' involvement, William H. Martin, Inc., presently a subsidiary of Chambers, operated the property as a sanitary landfill. Chambers subsequently converted the landfill into a modern waste treatment plant facility, fully licensed by the Pennsylvania Department of Environmental Resources (hereinafter "DER"). Under the present DER permit, which covers the entire 160 acres and calls for the landfill operations in both valleys, Chambers is authorized to process a maximum daily volume of 2,000 cubic yards or its equivalent in tonnage.
Troubles between respondents and Chartiers Township began when Chambers contracted with four New Jersey counties to accept their waste. This resulted in an increase in daily tonnage intake at the landfill. Disposal sites are at a premium everywhere, and those localities that have them are jealous of their use. The first to respond to the new contracts was the DER, who notified respondents that they intended to issue new regulations restricting the intake volume of solid waste that a landfill might accept, and that a significant increase above the daily allowed volume of
,000 cubic yards or its equivalent in tonnage would require permit modification. Accordingly, respondents filed for a new permit with DER, and filed an equity action in Commonwealth Court challenging the legality of the new regulations.*fn1 For the present it is sufficient to say that those contentions are now being pursued and argued in their natural course, and are not the issues presently before us. What is before us is the basic contention of Chartiers Township that the increased use of the trash site is an expansion of a pre-existing nonconforming use that requires a zoning variance.
Chartiers Township moved in the Court of Common Pleas of Washington County to enjoin what they perceived to be an illegal expansion of the pre-existing use. They were successful at the trial court, which enjoined the dumping of increased tonnage, and unsuccessful in Commonwealth Court, which lifted the injunction against respondents. The Township is asking this Court to assume plenary jurisdiction and vacate the stay granted by Commonwealth Court, and to reinstate the trial court's preliminary injunction.
Thus the germane issue is whether the stay pending appeal in this matter was properly entered by Commonwealth Court; for it is only from this order ...