18 Pa. Commw. 555 | Pa. Commw. Ct. | 1975
Opinion by
On May 16, 1973, the Department of Environmental Resources (DER) issued four orders addressed to Ever-son Borough, Scottdale Borough, Westmoreland-Fayette Municipal Sewage Authority (Authority)
The Authority, Everson Borough and Scottdale Borough joined in an appeal from said orders to the Environmental Hearing Board (EHB). The appellants alleged the absence of authority in the DER to issue the subject orders. Since the parties were in agreement as
Although appellants’ due process attack is, of necessity, framed in the context of a taking of their property without just compensation, we must initially determine whether appellants may even mount such an attack. The U. S. Supreme Court has traditionally denied to municipalities the right to assert their due process protections against actions taken by their sovereign.
This seemingly dictatorial authority which the state may exercise against its subdivisions is not without limitation. The state may not employ its power to establish, destroy or reorganize its political subdivisions to camouflage a strategy designed to deprive certain of the citizenry of the subdivisions of their individual constitutional rights. See, for example, Gomillion v. Lightfoot, 364 U.S. 339 (1960). In such a case, the affected citizens may clearly challenge the legality of the state/municipality interaction.
Accordingly, we enter the following
Order
Now, April 28, 1975, the order of the Environmental Hearing Board, dated October 7,1974, is hereby affirmed, and appellants are directed to comply with the May 16, 1973, orders directed to them by the Department of Environmental Resources.
. The Authority was initially formed by Everson and Scott-dale Boroughs, and operates a sewage treatment plant for the benefit of those two municipalities.
. Section 203 of the Act of June 22, 1937, P. L. 1987, as amended, 35 P.S. §691.203 (Supp. 1974-1975).
. Hunter v. Pittsburgh, 207 U.S. 161 (1907).