5 Pa. Commw. 495 | Pa. Commw. Ct. | 1972
Lead Opinion
Opinion by
The appellant, Greater Greensburg Sewage Authority (Authority) has operated a sewage treatment plant situate in Hempfield Township, Westmoreland County, since 1962. The sewage treatment plant provides treatment for sewage originating in the City of Greensburg, the Borough of South Greensburg, and parts of Hemp-field Township. A liquid residue termed “sludge” is produced in the operation of the sewage treatment plant. The sludge material is deposited on a farm owned by appellant, Wayne H. Hillis, located in Hemp-field Township.
On December 17, 1969, the Board of Supervisors of Hempfield Township enacted an ordinance numbered 69-11, which was designated as a Solid.Waste Management Ordinance. This ordinance requires that a license be obtained from the Township Supervisors for . the depositing of solid waste resulting from “industria], commercial, agricultural and residential activities.” The Authority, under protest, .applied for a license to deposit, sludge material under the ordinance but the application was denied by the .Township Supervisors. Wayne H. Hillis also applied for . a, license and was granted one which was subsequently rescinded.. .
The Authority and Wayne H. Hillis brought an action in mandamus to compel the issuance of a license to deposit “sludge” on the Hillis farm. They also filed a complaint in equity seeking injunctive relief from the
After hearing, the court below entered a decree nisi denying the relief sought and finding Ordinance No. 69-11 valid and constitutional. Exceptions were filed to the decree nisi and the court below en banc dismissed the exceptions, affirmed the decree nisi as a final decree and directed judgment to be entered on the decision of the trial judge. The Authority and Hillis appealed to this Court and we reverse.
The court below denied the relief sought by the Authority upon the following reasoning:
“Township Ordinance No. 69-11 was enacted in conformity with the Authority and requirements set forth in Section 10 of the Pennsylvania Solid Waste Management Act No. 241.
“Defendant Township Zoning Ordinance specifically provides for waste disposal areas in an I-1 zoned area under special exceptions. The Hillis farm is located in an A-l zoned area from which waste disposal areas are excluded. The Zoning Ordinance was enacted December 31, 1969, and became effective January 5, 1970.
“Even if the Hillis farm was being used as a nonconforming use under Section 301.1 of the Zoning Ordinance, it was not registered within six months of the effective date of the Ordinance as a nonconforming use under 301.5; and therefore, no permit could be issued by the Township Board of Supervisors as required in Ordinance No. 69-11 and/or 69-12.” (Emphasis supplied.)
Here the record fails to disclose that the method of disposal does not conform to the requirements of Ordinance No. 69-11 or to any other ordinance of Hempfield Township. It is the place of disposal which suggests the noncompliance with the zoning ordinance of Hempfield Township in that the Hillis farm is located in an A-l zoned area from which waste disposal areas are excluded. However, the Hillis farm qualifies as a nonconforming use under the provisions of Section 301.1 of the zoning ordinance which reads as follows: “301.1 ‘Nonconforming use’ means a use, whether of land or of a structure, which does not comply with the applicable use provisions in a zoning ordinance or amendment heretofore or hereafter enacted, where such use was lawfully in existence prior to the enactment of
The zoning ordinance became effective January 5, 1970 and the disposal of “sludge” on the Hillis farm commenced in 1967 following a letter dated January 13, 1967, to the Authority from the Department of Health, Commonwealth of Pennsylvania, authorizing such disposal. It is important to note that failure to register a nonconforming use under Section 301.5 of the zoning ordinance makes one subject to the penalties of Section 405 but failure to register does not cause the loss of the nonconforming use. Section 301.4 speaks to this point by stating that “[i]n the event that any nonconforming use ceases for a period, of one year, such nonconforming use shall not be resumed.” Here the record discloses that the Authority did not cease its nonconforming use of disposing of sludge on the Hillis farm for a one-year period. Thus the Authority’s nonconforming use continued, although not registered, and therefore the place of disposal was not in nonconformance to the requirements of the zoning ordinance which recognized and allowed a nonconforming use as to land. See Marchese v. Norristown Borough Zoning Board of Adjustment, 2 Pa. Commonwealth Ct. 84, 277 A. 2d 176 (1971) ; West Mifflin v. Zoning Hearing Board, 3 Pa. Commonwealth Ct. 485, 284 A. 2d 320 (1971) ; Duquesne Light Company v. Upper St. Clair Township, 377 Pa. 323,105 A. 2d 287 (1954).
Further, we think it important to note that Hemp-field Township Ordinance No. 69-11 was enacted under and in accordance with Section 10(b) of the Pennsylvania Solid Waste Management Act, Act of July 31, 1968, P. L. , No. 241, as amended, 35 P.S. §6010 (b), which reads: “In carrying out its responsibilities, any such municipality may adopt ordinances, regulations and standards for the storage and collection of solid
Section 7, Act of July 31, 1968, as amended, 35 P.S. §6007, provides for the issuance of a permit from the Department of Health
However, more important than all that we have stated hereto is that the enactment by the General Assembly of the Act of January 24, 1966, P. L. [1965] 1535, 35 P.S. 750.1, et seq., known as the Pennsylvania Sewage Facilities Act and the Act of July 31, 1968, as amended, 35 P.S. §6001, et seq., known as the Pennsylvania Solid Waste Management Act, resulted in a limited preemption of the field of regulation of sewage facility operations, including the disposal of the “sludge” from such operations. It follows that no municipality may enact an ordinance with provisions conflicting with a statute enacted by the legislature as to the requirements for licenses. Girard Trust Company v. Philadelphia, 336 Pa. 433, 9 A. 2d 883 (1939).
Accordingly, Ordinance No. 69-11 of Hempfield Township is invalid insofar as it regulates the Authority’s sewage treatment plant and requires the Authority to obtain a license prior to the disposal of the “sludge” resulting from the operation of the treatment plant. All phases of the operation of the Authority’s plant, including the disposition of the residual material resulting therefrom, are governed by the licensing procedures and regulations of the Department of Health established under the Pennsylvania Sewage Facilities Act and the Pennsylvania Solid Waste Act. It is immaterial to this litigation whether or not the Authority has complied with the permit requirements of the Act of July 31, 1968, as amended, 35 P.S. 6001, et seq. The Authority’s operation of the sewage treatment plant is under a permit issued by the Department of Health and the disposal of “sludge” on the Hillis farm followed letter authorization from the Department of Health.
We conclude that the court below erred in finding Hempfield Township Ordinance No. 69-11 valid and constitutional as applied to the Greater Greensburg Sewage Authority.
Decree and judgment reversed and this case is remanded to the court below to enter an appropriate order granting the relief requested by the complaint in equity and not inconsistent with this opinion.
The Department of Environmental Resources,. by Act of December 3, 1970, P. L. , No. 275, §20(14) (15), 71 P.S. §510-1(14) (15), was granted the power and given the responsibility to perform the duties by law heretofore vested in and imposed upon the Department of Health.
Concurrence Opinion
I concur with, what the court has here done and with most of what it writes. I do not concur, however, with the implication of the concluding paragraphs of the majority opinion that by reason of asserted preemption by the Pennsylvania Sewage Facilities Act, 35 P.S. §750.1, et seq., and the Solid Waste Management Act, 35 P.S. §6001, et seq., a municipality may not impose its zoning regulations upon an Authority’s activity of dumping sludge or other solid waste. Upper Dublin Township Authority v. Piszek, 420 Pa. 536, 218 A. 2d 328 (1966). See also School District of Philadelphia v. Zoning Board of Adjustment, 417 Pa. 277, 207 A. 2d 864 (1965).
