Kavanagh v. London Grove Tp.
| Decision Date | 22 August 1979 |
| Citation | 486 Pa. 133,404 A.2d 393 |
| Parties | Edward F. KAVANAGH, Huston T. Adams and Robert M. Abernethy, Appellants, v. LONDON GROVE TOWNSHIP and Daniel E. Blevins, Helen K. Blevins, Samuel L.Coates, Elkins Wetherill, Harriet Wetherill, Jess E. Bewley, Evelyn D. Bewley,Anna Barlow, Mary Helen Pierce, Julius J. Willa, Jr., John Speakman, LillianSpeakman, andBooth Yarnall, Intervenors. |
| Court | Pennsylvania Supreme Court |
Lawrence E. Wood, West Chester, for appellee, London Grove.
Robert W. Lentz, John C. Snyder, Paoli, for appellee, Daniel Blevins, et al.
Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, MANDERINO and LARSEN, JJ.
The Court being equally divided, the order is affirmed.
ROBERTS, J., filed an Opinion in Support of Affirmance in which O'BRIEN and NIX, JJ., join.
LARSEN, J., filed an Opinion in Support of Reversal in which MANDERINO, J., joins.
EAGEN, C. J., would reverse and remand for further proceedings.
Appellants are owners of a tract of land situated in an "R-1" residential zone of London Grove Township, appellee, in Chester County. The relevant zoning ordinance of the township provides that operation of a sanitary landfill is a permitted use within an R-1 zone but only if the operator is a municipality or a municipal authority. In January of 1976, appellants filed a petition for a curative amendment to the ordinance which amendment would provide that operation of a sanitary landfill was a permitted use regardless of whether the operator was a municipality, a municipal authority or a private enterprise.
Following hearing, the London Grove Township Board of Supervisors (the Board) denied the application and the Court of Common Pleas of Chester County affirmed without taking additional testimony. On further appeal, the Commonwealth Court unanimously affirmed. Kavanagh v. London Grove Township, 33 Pa.Cmwth. 420, 382 A.2d 148 (1977). This Court granted appellants' petition for allowance of appeal on November 9, 1978.
Appellant argues that the Pennsylvania Solid Waste Management Act, 35 P.S. § 6001-6017 (1977) (hereinafter the Act) has effected a limited pre-emption in the field of sanitary landfills and that, therefore, municipalities such as appellee township are precluded from adopting any regulations regarding such landfill operations. I disagree. Section 6002 declares the purpose of the Act to:
(1) Establish and maintain a cooperative state and local program of planning and technical and financial assistance for comprehensive solid waste management;
(2) Utilize, wherever feasible and desirable, the capabilities of private enterprise in accomplishing the desired objectives of an effective solid waste management program; and
(3) Require permits for the operation of processing and disposal systems.
The Act further provides that the Pennsylvania Department of Environmental Resources (DER) shall administer the Act, and shall establish policies and adopt regulations to effectuate the purposes and provisions of the Act. Id. at § 6006. Additionally, section 7 of the Act, 35 P.S. § 6007, sets forth a detailed permit procedure applicable to every person, municipality, county or authority which requires applicants desirous of using their land as a disposal area for a solid waste management system to first obtain a permit from DER. 1 While the Act does express a preference for the utilization of private enterprise, it does not purport to preclude municipalities from promulgating zoning ordinances and regulations in the area of sanitary landfill management, nor am I persuaded to construe the Act as implicitly containing such a preclusion.
The Second Class Township Code, 53 P.S. § 65708, As amended (Supp.1978-79) (hereinafter the Code) provides, in relevant part, that the supervisors of second class townships (such as appellee) shall have power to:
(R)egulate or prohibit the dumping or otherwise depositing of ashes, garbage, rubbish and other refuse materials within the township. . . . They shall also have power to
(1) Collect, remove and dispose of or to provide, by contract or otherwise, for the collection, removal and disposal, by incineration, Land fill or other methods of ashes, garbage, rubbish and other refuse materials and to prescribe penalties for the enforcement thereof. . . . To acquire any real property and to erect, maintain, improve, operate, and lease, either as lessor or lessee, facilities for incineration, Land fill or other methods of disposal . . .
Thus, regulation of landfill systems is specifically provided in the Code. It is our duty to reconcile the two legislative enactments and, if possible, to give effect to all of the provisions of each. Statutory Construction Act of 1972, 1 P.C.S. § 1921(a), § 1932 (Supp.1978-79). In this case, reconciliation so as to give full effect to both the Act and the Code is not difficult. A second class township has the power to adopt reasonable regulations and zoning ordinances regarding sanitary landfills so long as the regulations/ordinances are not inconsistent with the Solid Waste Management Act and DER regulations adopted pursuant thereto. 2 Since a municipality operated landfill can (and must) be operated in conformity with the rules, regulations and procedures adopted by DER, there is no Inherent conflict between the municipal ordinance and the Act. Consequently, the Act does not preempt municipalities from the field of landfill regulation.
To say that a municipality has the Power to enact zoning ordinances for a given purpose is not, however, to sanction the exercise of that power in a manner that is repugnant to constitutionally protected rights. This brings us, therefore, to appellants' principle contention that the appellee's prohibition of private landfill operations and allowance of public (municipal) operations is arbitrary, unreasonable and discriminatory and, hence, an invalid exercise of its police powers. The right to use one's own property as he or she sees fit is a fundamental and constitutionally recognized right. U.S.Const. Amends. V, XIV; Pa.Const. Art. I, § 1. These property rights are not absolute and are subject to reasonable restrictions in the public interest. Concord Township Appeal, 439 Pa. 466, 470, n. 1, 268 A.2d 765, 766, n. 1 (1970). The principles guiding to decision have been often enunciated by this Court.
There exists a presumption that a zoning ordinance is constitutionally valid. Bilbar Construction Co. v. Board of Adjustment, 393 Pa. 62, 141 A.2d 851 (1958). The burden of establishing its invalidity is upon the party who seeks to have it declared invalid. Beaver Gas Co. v. Osbourne Borough, 445 Pa. 571, 575, 285 A.2d 501, 504 (1971). An ordinance which purports to be an exercise of the police power must not be unreasonable, unnecessary or unduly oppressive, and "The means which it employs must have a real and substantial relationship to the objects sought to be attained." Lutz v. Armour, 395 Pa. 576, 578-79, 151 A.2d 108, 110 (1959); Atria, Inc. v. Board of Adjustment, 438 Pa. 317, 264 A.2d 609 (1970). Thus, zoning ordinances are valid whenever necessary for the preservation of the public health, safety, morals or general welfare, Pennsylvania Municipalities Planning Code, 53 P.S. § 10604 (Zoning Purposes) (1977); Lord Appeal, 368 Pa. 121, 125-26, 81 A.2d 533, 535 (1951), but the power to regulate does not permit arbitrary, unreasonable or unnecessary intermeddling with private legitimate businesses. Gambone v. Commonwealth, 375 Pa. 547, 551, 101 A.2d 634, 636 (1954). Clearly, as previously discussed, the operation of landfill systems is a proper subject of appellee's concern, but the zoning ordinance, and the public-private distinction therein, must bear a substantial relation to the public health, safety, morals or general welfare.
I know of no directly applicable decisions of this Court wherein a zoning ordinance was challenged because a use was permitted if executed by a municipality while prohibited if executed by a private enterprise. If government were to begin to enact laws which permitted certain entrepreneurial uses but only if the enterprise were conducted by government, it seems certain that in due course the role of government as entrepreneur would be increased to the detriment of private enterprise. It seems clear, therefore, that a zoning ordinance which permitted the operation of a gasoline station, for example, but only if run by government, would be held to be invalid. On the other hand, it is manifest that a zoning ordinance which permitted the operation of a jail, but only if run by the government, would be constitutional. There is, therefore, a line to be drawn between land uses which the government can permit to itself but forbid to private enterprise.
Examining the record in this case, it becomes apparent that the distinction drawn by the township is an artificial one. The purported justifications offered by appellee, intervenors 3 and the Board of Supervisors in support of the distinction are essentially two. These justifications are factually contradicted by the record and each may be accomplished by less drastic means.
First, appellee and intervenors assert that permitting landfills to be operated only by municipalities will result in greater control over problem areas not covered by DER...
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