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Commonwealth of Pennsylvania, Office of Attorney General, By Linda L. v. Packer Township and Packer Township Board of Supervisors

July 12, 2012

COMMONWEALTH OF PENNSYLVANIA, OFFICE OF ATTORNEY GENERAL, BY LINDA L. KELLY, ATTORNEY GENERAL, PETITIONER
v.
PACKER TOWNSHIP AND PACKER TOWNSHIP BOARD OF SUPERVISORS, RESPONDENTS



The opinion of the court was delivered by: Rochelle S. Friedman, Senior Judge

Submitted: April 13, 2012

BEFORE: HONORABLE DAN R. PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN

Packer Township and Packer Township Board of Supervisors (together, Township) have filed a motion for summary judgment or partial summary judgment (Motion) in response to the petition for review filed by the Commonwealth of Pennsylvania, Office of Attorney General, by Linda L. Kelly,*fn1 Attorney General (Attorney General), pursuant to Chapter Three of the Agricultural Code (ACRE), 3 Pa. C.S. §§311--318.*fn2 We deny the Township's Motion.*fn3

The relevant history of this case is as follows. On June 11, 2008, Packer Township enacted Ordinance Number 08-003 entitled "Packer Township Local Control, Sewage Sludge and Chemical Trespass Ordinance" (Ordinance). The Ordinance prohibits the land application of sewage sludge by corporations and regulates the land application of sludge by individuals within the Township.

Clyde Hinkle owns and operates a 100-acre dairy and crop farm (farm) located in the Township's Agricultural Security Area. The Department of Environmental Protection (DEP) approved Hinkle's farm for the land application of Class A biosolids to fertilize his croplands. Prior to the enactment of the Ordinance, Hinkle applied Class A biosolids with a lime mix to fertilize his farm. After the Township adopted the Ordinance, Hinkle voluntarily ceased using Class A biosolids as a fertilizer. Hinkle requested the Attorney General to review the Ordinance pursuant to section 314(a) of ACRE, 3 Pa. C.S. §314(a), to determine whether the Ordinance was "unauthorized."*fn4

The Attorney General conducted the requested review and concluded that the Ordinance was an "unauthorized local ordinance" under ACRE.*fn5 On August 18, 2009, the Attorney General initiated this action against the Township by filing a petition for review in the nature of a complaint for declaratory judgment and injunctive relief in this court's original jurisdiction pursuant to section 315(a) of ACRE, 3 Pa. C.S. §315(a).*fn6 In the petition for review, the Attorney General seeks to invalidate and enjoin the enforcement of the Ordinance. The Attorney General contends, inter alia, that the Solid Waste Management Act*fn7 (SWMA) and the act commonly referred to as the Nutrient Management Act*fn8 (NMA) establish uniform statewide standards regulating the application of sewage sludge to land, which preclude the Ordinance's inconsistent regulation of these activities. The Attorney General contends that the Township's Ordinance interferes with normal agricultural operations and is an unauthorized local ordinance under ACRE.

In response to the petition for review, the Township filed preliminary objections,*fn9 which this court overruled in their entirety. Thereafter, the Township filed an answer, which it subsequently amended, to the Attorney General's petition for review.

The Attorney General filed an application for summary relief pursuant to Rule 1532(b) of the Pennsylvania Rules of Appellate Procedure,*fn10 asserting that the Ordinance violates and is preempted by state law and that the Attorney General is entitled to judgment in her favor as a matter of law. By order dated March 17, 2010, this court granted the Attorney General's application for summary relief with respect to the amendment removing the authority of the Attorney General to enforce any state law that removes authority from the people of the Township; the court denied the application in all other respects.

Following discovery, the Township filed the instant Motion, seeking summary judgment on the basis that ACRE, which authorizes the Attorney General to enforce a preemptive scheme, violates the right of Township residents to local self-government and is unconstitutional. The Township further claims that, without an affected complainant, the Attorney General cannot bring this action. Alternatively, the Township seeks partial summary judgment to remove the Ordinance's corporate sludging ban and community bill of rights from the challenge. The Township asserts that the complainant, who operates an unincorporated farm, is not affected by the Ordinance's ban on corporate sludging and, therefore, the Attorney General lacks authority to challenge this provision. The Township further asserts that the Ordinance's community bill of rights is immune from attack because it does not purport to limit or prohibit agricultural operations. Viewing the record in the light most favorable to the non-moving party, as we must, we conclude that the Township is not entitled to summary judgment or partial summary judgment.

First, the Township contends that it is entitled to summary judgment as a matter of law because ACRE interferes with the constitutionally guaranteed right to local self-government. Relying upon the Pennsylvania Constitution and the Declaration of Independence, the Township contends that it has the right to enact and enforce laws to protect the public health and environment, especially when those laws impose more stringent standards than those established by state or federal law, and that ACRE violates this right by empowering the Attorney General to file an action to nullify such laws. We disagree.

The Township invokes Article 1, section 2 of the Pennsylvania Constitution, which declares that citizens have the "inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper," and Article 1, section 25, which states that each right declared in Article 1 is "excepted out of the general powers of government and shall forever remain inviolate." Pa. Const. art. 1, §§2, 25. The Township contends that Article 1, section 2 establishes an "inalienable right of local self-government," (Township's Br. at 49), and that Article 1, section 25 means that "this right is not subject to the general government's procedures for altering government or for providing for local government," (Township's Br. at 46).

In Commonwealth v. East Brunswick Township, 956 A.2d 1100 (Pa. Cmwlth. 2008), East Brunswick Township raised a similar self-governance argument in defense of its restrictive sludge ordinance.*fn11 We rejected the argument, explaining that "local governments are creatures of the legislature from which they get their existence." Id. at 1107 (quoting Robert E. Woodside, Pennsylvania Constitutional Law 507 (1985)). We continued:

[I]t is fundamental that municipal corporations are creatures of the State and that the authority of the Legislature over their powers is supreme. Municipal corporations have no inherent powers and may do only those things which the Legislature has ...


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