Quakertown Borough v. Richland Township
| Citation | 75 Pa. D. & C.2d 745 |
| Decision Date | 09 March 1976 |
| Docket Number | 74-11531-06-6 |
| Parties | Quakertown Borough v. Richland Township |
| Court | Commonwealth Court of Pennsylvania |
Defendants' preliminary objections to complaint in mandamus.
Rodney D. Henry, for plaintiff.
Richard A. Rosenberger, for defendants.
Before Ludwig, Beckert and Mountenay, JJ.
This court, sitting en banc, denied the motion for summary judgment of plaintiff, Quakertown Borough, and thereafter, under the single-judge procedure of Bucks County R.C.P. *266, we sustained the preliminary objections of defendants, Richland Township, its supervisors and zoning officer-building inspector, and dismissed the complaint in mandamus. Plaintiffs appeal followed.
Quakertown Borough owns a 3.7-acre tract of land located directly across its boundary line in Richland Township. The relief sought by this mandamus action is a decree compelling the issuance of what the complaint describes as a " public solid waste incinerator and/or trash facility." Richland Township's zoning officer-building inspector refused the borough's application for these permits zoning and building permits to use the property for because the proposed use violated the township's zoning and subdivision ordinances and its building code. [1]
The complaint states that Quakertown Borough intends to lease the property, the construction and operation of the waste disposal unit to be in the hands of an enterprise consisting of itself and the Boroughs of Sellersville and Perkasie, pursuant to the Act of July 12, 1972, P.L. 454 (No. 180), 53 P.S. § 481, et seq., relating to joint municipal activities. The complaint also alleges that the disposal unit is urgently needed by these municipalities in order to carry out the mandate of the Pennsylvania Solid Waste Management Act of July 31, 1968, P.L. 788 (No. 241), 35 P.S. § 6001, et seq. However, the sole issue presented to us was whether Quakertown Borough as the owner of a property situated in Richland Township may proceed to make use of it for this purpose without being subject to the substantive provisions of the township's zoning, building and land development ordinances.
Plaintiffs main argument is founded on its construction of section 702 of The Second Class Township Code of May 1, 1933, P.L. 103, art. VII, as added by the Act of August 27, 1963, P.L. 1280, sec. 1, 53 P.S. § 65762, which states: " No ordinance... shall be adopted which in any manner restricts, interferes with, hinders or affects the operation of any other political subdivision or instrumentality of the Commonwealth..." Under the Statutory Construction Act of November 25, 1972, " political subdivisions" includes a borough: 1 Pa. C.S. § 1991. [2] Accordingly, says plaintiff, the township's ordinances should not be allowed to impair its operations, in this instance, the disposal of solid waste.
We did not regard the issue as that simplistic. The prohibition of section 702 clearly pertains only to a township's interference with the operations of " other political subdivisions" that constitute the exercise of lawful authority and proper function. See Greater Greensburg Sewage Authority v. Hempfield Township, 5 Pa.Cmwlth. 495, 503, 291 A.2d 318 (1972) (Rogers, J. concurring). Cf. School District of Philadelphia v. Zoning (1965). Not every endeavor of a political subdivision, regardless of its propriety or purpose, would Board of Adjustment, 417 Pa. 277, 207 A.2d 884 appear to be ipso facto immune to the regulatory power of a township. What then is the authority of a borough as to activities carried on by it or for its benefit beyond its geographical limits? In dealing with inter-governmental relationships, obvious distinctions must be made according to the hierarchical rank of the political subdivisions involved and the nature and location of the activity or area to be pre-empted.
On the subject of competing municipalities (Middletown Township v. Delaware County Institution District, 450 Pa. 282, 299 A. 2d:599 (1973)), which plaintiff heavily relies on, does not supply the answer. It describes the purpose of,section 702 as protecting " state and county agencies [from] the preferences and prohibitions of every township's local zoning and building regulation in the Commonwealth." 450 Pa. at 288. (Emphasis supplied.) It distinguishes School District of Philadelphia, supra, in that there the school district and city were 450 Pa. at 290. If anything, the inference to be drawn is contrary to plaintiffs position: A township's exercise of zoning power over another municipality's extra-territorial operations was not intended to be proscribed by section 702. No case to our knowledge has addressed itself to this question.
Plaintiff referred to two other decisions. In D'Lauro Company v. Bensalem Township, 23 Bucks 172 (1972), we held unlawful, as a violation of section 702, the assessment of a building permit fee on construction work being done for the State Public School Authority. The easily resolved conflict there was between a township and a creature of the State, the public school system, performing a State function.
Greater Greensburg Sewage Authority, supra, is more germane since it concerns the relationship between the Solid Waste Management Act, supra, and the power of local zoning. But, factually, it is not that helpful. It determined that the operation of plaintiffs sewage authority was a valid nonconforming use and, as such, did not violate the use provisions of the zoning ordinance of Hempfield Township. The township had also enacted an ordinance governing the " place and method" of solid waste disposal, and this ordinance was found by the Commonwealth Court to be unconstitutional. 5 Pa.Cmwlth. at 501.
Greater Greensburg Sewage Authority, however, does not demarcate the limits of the pre-emption; and in his concurring opinion, Judge Rogers specifically notes that he does not concur " with the implication of the concluding paragraphs of the majority opinion that by reason of asserted preemption... a municipality may not impose zoning regulations upon an Authority's activity of dumping sludge or other solid waste." 5 Pa.Cmwlth. at 503. The report of the case does not disclose the nature of the " Greater Greensburg Sewage Authority" as a governmental instrumentality, and the
While the construction of section 702 in the present context and the extent of pre-emption effected impact, if any, of section 702 is not discussed. by the Solid Waste Management Act raise issues of considerable importance, the resolution of them here is far from clear cut. We do not believe they should be decided in the present mandamus action for two principal reasons.
First, the power of a borough to purchase real estate for waste disposal purposes, both " within and without" the borough limits, originates in:The Borough Code of February 1, 1966, P.L. (1965) 1656 (No. 581), sec. 2511, 53 P.S. § 47511. Further, section 2512 of The Borough Code, 53 P.S. § 47512, requires that a borough shall first obtain approval of the disposal site from the Court of Common Pleas, which shall, upon objection, " determine whether the location is a detriment to neighboring properties." These provisions of the code have not been expressly repealed; and the Solid Waste Management Act nowhere states an intention to occupy the field to the exclusion of the court's approval of the site or of local zoning. It is not unreasonable to project co-existing sets of regulations where the interests created by different statutes are not incompatible or such separate controls unfeasible. See Upper Dublin Township Authority v. Piszek, 420 Pa. 536, 218 A.2d 328 (1966); School District of Philadelphia v. Zoning Board, supra; Kingston Borough v. Kalanosky, 155 Pa.Super 424, 38 A.2d 393 (1944).
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