Taylor v. HARMONY TP. BD. OF COM'RS

• Decision Date: 10 June 2004
• Citation: 851 A.2d 1020
• Parties: Robert TAYLOR, Appellant v. HARMONY TOWNSHIP BOARD OF COMMISSIONERS.
• Court: Pennsylvania Commonwealth Court

851 A.2d 1020

Robert TAYLOR, Appellant v. HARMONY TOWNSHIP BOARD OF COMMISSIONERS.

Commonwealth Court of Pennsylvania.

Argued May 3, 2004.

Decided June 10, 2004.

David L. Gropp, Beaver, for appellant.

Jeff Hollowood, Sewickley, for appellee.

BEFORE: McGINLEY, Judge, and PELLEGRINI, Judge, and KELLEY, Senior Judge.

OPINION BY Judge PELLEGRINI.

Robert Taylor (Taylor) appeals an order of the Court of Common Pleas of Beaver County (trial court) dismissing his appeal from the adjudication issued by the Harmony Township Board of Commissioners (Board) denying his application for a logging permit.

Ray and Lydia Yoder (collectively, Yoder) currently own 1100 Valley Road (the Property). The Property is located in Harmony Township (Township), a First Class Township in Beaver County. Under the Township's local Ordinance No. 335 (Ordinance 335), effective November 19, 2001, "no timber harvesting shall take place in areas determined by the Engineer, with reference to published or commonly accepted guidelines, to be landslide-prone or flood-prone." (Section 4C of Ordinance 335, Reproduced Record at 41a). Yoder has executed an unrecorded deed to Taylor for the Property, the sale of which was conditioned on Township approval of a logging permit for the Property.

In November, 2001, the Township's Code Enforcement Officer, Frank Presto (Code Enforcement Officer), met with Taylor and advised him that there were potential problems with the Property because it was in a landslide-prone area. The Code Enforcement Officer gave Taylor a copy of Ordinance 335 (Reproduced Record at 41a).

On September 30, 2002, the Code Enforcement Officer was told by neighbors that they heard men with chainsaws two days earlier. Following up, the Code Enforcement Officer contacted the Beaver County Conservation District to conduct a site inspection at the Property. They discovered that a full-scale logging operation was underway which was being conducted by Taylor. There was no permit to log issued by the Township to Taylor or Yoder. The Code Enforcement Officer made the loggers stop and filed citations with the local magistrate for logging without a permit.

On October 10, 2002, Taylor filed an application for logging as required by Ordinance 335. After reviewing the application to make sure it was complete, the Code Enforcement Officer sent the application to the Township Engineer Frank E. Lemmon, Jr. (Township Engineer). After consulting with geologists, the Township Engineer issued a report recommending that "based on the previous events in this area there is no doubt that [the Property] is in a landslide-prone area of the Township and that the permit application to log this parcel should be denied by the Township Logging Administrator." (Reproduced Record at 138a). After receiving that recommendation, the Code Enforcement Officer officially notified Yoder on October 24, 2002, that the permit was denied.

Yoder then requested a variance¹ contending that timbering could be conducted without appreciably increasing the risk of landslides. Taylor then contacted a professional engineering firm, PSI, to survey the land. PSI indicated that non-intrusive logging operations would not have a negative effect on the slope of the Property, but that "most areas of the site are susceptible to landsliding[.]" (Reproduced Record at 177a). The Code Enforcement Officer also walked the proposed logging site and discovered that there had been numerous landslides in that area in the past, citing at least three landslides directly above the Property that washed away a nearby road. After receiving another Engineering Report denying Yoder's request for a variance, the Code Enforcement Officer formally notified Yoder that the request for a variance was denied on November 26, 2002. An appeal from the denial of the variance and the denial of the logging permit was then taken to the Board.

After a public hearing, the Board issued findings of fact, conclusions of law, and an order affirming both denials, finding that based on geological reports, the Property was landslide-prone, and timber could not be harvested because it appreciably increased the risk of more landslides. Taylor appealed that order to the trial court, which received a Stipulation of Attorneys setting forth information relating the enactment of Ordinance 335.² Because substantial evidence supported the Board's decision, the trial court dismissed Taylor's appeal. Taylor appeals from that determination.³

I.

Abandoning the argument that he is entitled to a permit under the terms of Ordinance 335 or a variance from its provisions, Taylor instead argues that Ordinance 335 is invalid because the Township is not authorized to regulate logging or harvesting of timber under the First Class Township Code (Code).⁴ In making this argument, Taylor contends that (1) the general "police power" provisions of the Code do not specifically authorize the Township to regulate logging or timber harvesting as the Township suggests; and (2) the Pennsylvania Municipalities Planning Code (MPC)⁵ is the enabling statute that controls this case, and because the MPC prohibits unreasonable restrictions on logging and timber harvesting, Ordinance 335 is invalid.⁶

As to Taylor's first argument, the Code has numerous sections referring to general police powers of first class townships. Under Section 1502, cl. X of the Code, first class townships may "take all needful means for securing the safety of persons or property within the township." 53 P.S. § 56510. In addition, Section 1502, cl. LII of the Code provides that a first class township may:

make and adopt all such ordinances, by-laws, rules and regulations not inconsistent with or restrained by the Constitution and laws of this Commonwealth as may be deemed expedient or necessary for the proper management, care and control of the township and its finances, and the maintenance of peace, good government and welfare of the township and its trade, commerce and manufactures.

53 P.S. § 56552. Finally, Section 1502, cl. XLIV of the Code provides that first class townships may "make such regulations as may be deemed necessary for the health, safety, morals, general welfare, cleanliness, beauty, convenience and comfort of the township and the inhabitants thereof." 53 P.S. § 56544. Although police powers are not without limitation, Pennsylvania courts have recognized that municipalities have the power to enact legislation aimed at protecting the health, safety, and welfare of citizens under the general welfare clauses contained in municipal codes. See Gambone v. Commonwealth, 375 Pa. 547, 101 A.2d 634 (1954)

; Western Pennsylvania Restaurant Association v. Pittsburgh, 366 Pa. 374, 77 A.2d 616 (1951). See also Simco Sales Service Inc. v. Lower Merion Township Board of Commissioners, 38 Pa. Cmwlth. 434, 394 A.2d 642 (1978).

Turning now to Ordinance 335, it is clear that the Township enacted that ordinance to prevent harm to the public welfare caused by landslides and storm water runoff. Keeping in mind that Ordinance 335 enjoys presumptive validity, Simco, and judging by the plain language and necessary effect of Ordinance 335, Ordinance 335 is a valid exercise of the Township's power because it seeks to minimize floods, landslides, and dangerous stormwater runoff; it seeks to prevent damage to roads, damage to drains, damage to public utilities, damage to watercourses, fire hazards, and reduction in property value; and it seeks to enhance the natural beauty and environment within the Harmony Township. All these aims fall squarely within the general police power provisions of the Code cited above.

As to Taylor's contention that the MPC is the controlling enabling statute and consequently prohibits unreasonable restrictions on logging and timber harvesting,⁷ we explained in Land Acquisition Services, Inc. v. Clarion County Board of Commissioners, 146 Pa.Cmwlth. 293, 605 A.2d 465 (1992), that the MPC applies in the following scenarios: (1) creation of official maps; (2) subdivision regulation; (3) planned residential developments; or (4) zoning ordinances. In that case, the county passed an ordinance regulating hazardous waste disposal activities, designating certain zones as waste sites; requiring setback requirements; requiring fences around waste sites; and requiring waste-site proposal plans. We noted that the ordinance at issue did not relate to an official map, a subdivision plan, or residential development, so the only way that the MPC would apply was to classify the ordinance as a zoning ordinance. Determining that it was not, we explained that "`[t]he distinctive characteristic of zoning involves zones, as well illustrated by Section 605 of the MPC....' " Id. at 470 (quoting IA Construction Corporation v. Township of Bradford, 143 Pa.Cmwlth. 302, 598 A.2d 1347, 1349 (1991)). We further reasoned as follows:

Although the components of the ordinance which LAS argues render the ordinance zoning ordinances are used in zoning and land use legislation, they are not, as we said in IA, the exclusive "hallmarks of zoning."

Because the ordinance at issue here has as its primary objective the regulation of hazardous waste disposal activity, and because the terms of the ordinance go no further than the "scope of that goal," our conclusion is that the ordinance is not a zoning regulation.

Land Acquisition Services, 605 A.2d at 470.

Applying those principles to the present case, we conclude that Ordinance 335 is not a zoning ordinance, does not deal with subdivision of Taylor's land, and does not deal with residential development; instead, the scope of Ordinance 335 is to regulate logging and timber harvesting that may jeopardize the integrity of the land in flood-prone or landslide-prone areas. Because Ordinance 335 does not contain the exclusive hallmarks of zoning, and because it has as its primary objective the regulation of timber harvesting in slide-prone and flood-prone areas,...