Appeal from Common Pleas Court, Tioga County, Honorable Robert M. Kemp, Judge.
Steven L. Friedman and James J. Greenfield, Dilworth, Paxson, Kalish & Kauffman, Philadelphia, for appellant.
Allen E. Ertel, Allen E. Ertel & Assoc., Williamsport, for appellee.
Colins and Palladino JJ., and Barbieri, Senior Judge.
[ 128 Pa. Commw. Page 33]
Ronald H. Clark, Inc. (Clark) appeals the order of the Tioga County Court of Common Pleas which sustained the preliminary objections of the Township of Hamilton (Township) to Clark's declaratory judgment complaint seeking a determination that Ordinances passed by the Township restricting Clark from operating a landfill were invalid.
The facts surrounding the appeal are that in November of 1984, Clark obtained long term leases on 400 acres in Hamilton Township for the purpose of operating a "natural renovation landfill." On November 9, 1984, Clark applied to the Department of Environmental Resources (DER) for a landfill permit which was denied on September 13, 1985. Clark re-applied for a permit to operate a state-of-the-art landfill with a protective liner. This permit application had not yet been acted upon at the time of the decision and opinion of the trial court.*fn1
[ 128 Pa. Commw. Page 34]
In November of 1985, the Township passed four Ordinances that purported to regulate the use of landfills in the Township. Ordinance No. 14 regulates landfills by creating location restrictions and states no landfill may operate without written permission by the Board of Supervisors. Ordinance No. 16 prohibits vehicles weighing more that 30,000 pounds from using a described portion of a Township road. Ordinance No. 17 governs operation of solid waste landfills and establishes location restrictions and assesses a 10% tax on the landfill's gross yearly revenues, increasing by 1% annually. Ordinance No. 19 basically regulates activities involving deep mines and prohibits excavations more than ten feet deep without a Township permit.
On June 6, 1988, Clark filed an action under the Declaratory Judgments Act, 42 Pa.C.S. §§ 7531-7541, seeking a determination that these Ordinances were invalid because landfill operation has been pre-empted by the Solid Waste Management Act, 35 Pa.C.S. §§ 6018.101-6018.1003. Clark also alleged that the Ordinances represented spot zoning,*fn2 and that the Township is barred by the pending ordinance doctrine from enforcing them against Clark. Clark further contends that Ordinance No. 16 imposing a weight restriction is pre-empted by the Motor Vehicle Code, 75 Pa.C.S. §§ 4941-4947, and Ordinance No. 19 imposing an excavation prohibition is pre-empted by the Bituminous Mine Subsidence and Land Conservation Act, 52 Pa.S. § 1406.7(b). Clark also argued that none of the Ordinances were properly advertised and noticed.
The Township filed preliminary objections to Clark's action for declaratory judgment, several of which the trial court sustained.*fn3 The trial court held that since Clark had
[ 128 Pa. Commw. Page 35]
been denied one landfill permit by DER and the reapplication had not yet been acted upon by DER, no actual case or controversy existed and the case was not ripe for declaratory decision. The trial court also concluded that the pending ordinance doctrine did not apply*fn4 and Clark had not stated a claim that the Ordinances were improperly advertised or noticed. Because we conclude that this matter does not present an ...