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decided: November 25, 1988.


Appeal from the Order of the Court of Common Pleas of Montgomery County, in the case of Township of Plymouth v. County of Montgomery, No. 85-19292; in the case of Township of Plymouth v. County of Montgomery, No. 85-19293, and in the case of County of Montgomery v. Township of Plymouth, No. 88-02524, dated June 17, 1988.


Arthur Lefkoe, with him, Deborah G. DeLauro, Wisler, Pearlstine, Talone, Craig and Garrity, for appellant.

Bruce W. Kauffman, with him, Sheryl L. Auerbach and James J. Greenfield, Dilworth, Paxson, Kalish & Kauffman ; Of Counsel: Frederic M. Wentz and Bruce J. Eckel, for appellee.

Judges Craig, Barry and McGinley, sitting as a panel of three. Opinion by Judge Craig. Judge MacPhail did not participate in the decision in this case.

Author: Craig

[ 121 Pa. Commw. Page 304]

Plymouth Township v. Montgomery County, 109 Pa. Commonwealth Ct. 200, 531 A.2d 49 (1987), states the

[ 121 Pa. Commw. Page 305]

    facts which constitute the underlying history of this case and also contains judicial determinations and conclusions which affect many of the issues involved in this litigation sequel.

The county, in accordance with a countywide waste management plan, has sought to construct a 1200-ton-per-day resource recovery facility, a trash-to-steam refuse disposal plant in the industrial area of Plymouth Township. The previous litigation ensued after the township repealed the zoning amendment that it had adopted consistent with the plant development and sought to interpose new zoning amendments negating the project.

At that time, the township initiated simultaneous declaratory judgment and equity actions against the county, seeking a declaration that the county's proposed plant would violate township ordinances and an injunction against the county. The county, by counterclaim, sought to invalidate the prohibitory ordinances and enjoin the township from blocking the plant development. Judge Bucher, as a senior judge assigned to the Court of Common Pleas of Montgomery County, decided against the township, ruling that all of the questioned ordinances were unenforceable with respect to the proposed plant and enjoining the township from taking any action against the plant other than as a party to proceedings within the jurisdiction of the Pennsylvania Department of Environmental Resources.

On appeal, this court decided as follows:

1. In the equity action, this court affirmed the injunction against the township, except with respect to the township's lawful application of Ordinance No. 837, the Subdivision and Land Development Ordinance, and except as to sections of the township's code of ordinances relating to routine building construction approvals.

[ 121 Pa. Commw. Page 3062]

. That order of this court relating to the injunction implemented our conclusion that the proper approach for relief is one which

     calls upon the trial court to bar township interference with the development and operation of the resource recovery facility on the planned site . . . but with the recognition that the township . . . may apply its established subdivision and land development regulations, and sewer connection requirements, with respect to the physical relationship of the county's site as to the roads, sewers and other land outside it.

3. In the declaratory judgment case, we affirmed the trial court's determinations that the township's zoning amendments and solid waste management ordinance were invalid, and we confirmed that the state's solid waste laws have preempted the township's power to regulate the transportation, processing and disposal of waste but not "lawful zoning concerning the location of plants and buildings for such purposes."

After the entry of this court's order in September of 1987 and denial of the township's petition for reargument, the county and its contractor proceeded, in the latter part of 1987 and the first two months of 1988, to apply for the township's approval under its subdivision and Land Development Ordinance, which remained applicable according to our decision.

After proceedings in the township on that matter -- which we list in more detail below -- the township council, on February 9, 1988, denied the county's land development application. The county filed with the Common Pleas Court of Montgomery County a statutory appeal of that denial and a motion to enforce our September 1987 order. After receiving additional testimony, Judge Bucher sustained the county's appeal from the land development application denial and granted

[ 121 Pa. Commw. Page 307]

    the county's motion to enforce our order. The trial court also directed the issuance of all permits pursuant to construction plans, ruled that further zoning proceedings were not required, and retained jurisdiction for implementation.

The township's appeal to this court pursues six questions, which this opinion will define and resolve, each in its turn.

The Question of Further Zoning Proceedings

The township here pursues a question of zoning law not expressly pursued in the previous case, based upon the township's assumption that judicial invalidation of the township's obstructive zoning ordinance amendments, together with the township's express repeal of the earlier amendment which would have allowed the project, have now left in effect the antecedent zoning classification applicable to the county's land. That earlier Heavy Industrial Zoning District classification required a special exception to build a refuse disposal plant, and, according to the township, imposed a 200-foot maximum height limit which negates the county's erection of a resource recovery plant's stack of greater height unless the county seeks and obtains a height variance.

Therefore, the township poses the issue:

Did the trial court err in ruling that the applicant was not required to comply with the township zoning ordinance provisions requiring a special exception for the proposed use and placing a limit upon stack height?

Under the law of the case applicable here, no questions of zoning compliance remain. The previous injunction of the trial court enjoined the township from taking any action against the county's project other than under the environmental laws administered by DER. This court modified that injunction only to the extent of

[ 121 Pa. Commw. Page 308]

    allowing township subdivision and land development regulations and building construction regulations to apply. Examination of the trial court injunction, as affirmed with some modification by this court, makes that point clear.

The only broader language appeared in our modification of the trial court's declaratory judgment decision. There, recognizing that a declaratory judgment with respect to the enforceability of local ordinances must necessarily speak in more general terms, this court resolved the preemption question by affirming that state law had preempted the transportation, processing and disposal of waste, but had not negated township zoning powers with respect to the location of plants and buildings for solid waste uses. The general terms of the declaratory judgment do not broaden the case-specific injunction here which treated all zoning questions as resolved and left only land development and building construction regulations for further compliance proceedings.

The finality of that injunction means that the township cannot open an alternative zoning claim, particularly when it could have pursued that alternative claim in the equity case. By seeking an injunction against the county on the basis of the township's zoning regulations, the township necessarily caused that litigation to constitute a vehicle for any and all zoning issues. With respect to the county's counterclaim to enjoin the township from applying its zoning laws to thwart the county, the township could have raised the alternative contention it now presents -- namely that, even without the restrictive new amendments, the underlying zoning classification should nullify the injunction. In accordance with well understood principles of res judicata, the final judgment enjoining the township in the previous case is conclusive not only as to those zoning matters which were litigated,

[ 121 Pa. Commw. Page 309]

    but also as to those zoning claims which could have been litigated. See Township of Ohio v. Builders Enterprises, Inc., 2 Pa. Commonwealth Ct. 39, 276 A.2d 556 (1971), aff'd, 446 Pa. 319, 284 A.2d 686 (1971). The ultimate issues, as to zoning law barriers against this selfsame project, could have been decided in the previous proceeding, where the present parties had an opportunity to assert all their claims on that score. Cf. Callery v. Blythe Township Municipal Authority, 432 Pa. 307, 243 A.2d 385 (1968).

Land Development Regulation Compliance

The township's remaining questions relate to compliance with the township's land development regulations, a matter which the parties necessarily had to pursue after the previous decision by this court.

A chronology, drawn from the extensive findings of fact of the trial court in this case, will be helpful. Those findings indicate the following sequence of events after our previous order in September of 1987:


September 16: The county's contractor requested a meeting with the township to discuss the land ...

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