LIVERPOOL TOWNSHIP, Appellant v. Dean STEPHENS.
Commonwealth Court of Pennsylvania.
Decided June 19, 2006.
903 A.2d 1030
Argued April 5, 2006.
In sum, there must be at least four public meetings at which “deliberations” or “official action” take place: the July 2005 meeting at which the Redevelopment Authority presented the TIF proposal; and the subsequent Township, County and School District meetings at which the respective taxing bodies vote on the proposal. Under these circumstances, Appellants’ contention that additional, earlier public meetings are needed to shed sunshine on the process is unpersuasive.
For all the reasons discussed, we affirm the trial court.
ORDER
AND NOW, this 13th day of June, 2006, the order of the Court of Common Pleas of Washington County is AFFIRMED.
LIVERPOOL TOWNSHIP, Appellant v. Dean STEPHENS.
Commonwealth Court of Pennsylvania.
Argued April 5, 2006.
Decided June 19, 2006.
James H. Turner, Harrisburg, for appellee.
BEFORE: COLINS, President Judge, MCGINLEY, Judge, PELLEGRINI, Judge, FRIEDMAN, Judge, LEADBETTER, Judge, SIMPSON, Judge, and LEAVITT, Judge.
OPINION BY Judge LEAVITT.
Liverpool Township appeals a decision of the Court of Common Pleas of the 41st Judicial District (Perry County Branch) (trial court) enjoining the enforcement of a township ordinance that regulates the application of processed municipal sewage to agricultural land. The trial court found that this ordinance conflicted with a state law that regulates this activity and, thus, was preempted. Accordingly, the owner of the farmland, Dean Stephens, was found to have done all that was required in order to fertilize his fields lawfully by obtaining a permit from the state. We affirm.
In 1993, the Township adopted Ordinance 13 pursuant to Section 708 of The Second Class Township Code.1 It made it unlawful “for any person to use or continue to use their land or any other land as a storage, transfer, collection, processing
On December 17, 2003, the Township filed an action to enjoin Stephens from fertilizing his fields with processed municipal sewage until he obtained an appropriate permit from the Township. The Township instituted this action because Stephens had fertilized his fields on several occasions in 2003 without the benefit of a Township permit.2 This was not disputed by Stephens, but he contended that he did not need a Township permit because he had a permit from the Pennsylvania Department of Environmental Protection (DEP) and was in compliance with the terms thereof. Stephens argued that Ordinance 13 was preempted by the Solid Waste Management Act (SWMA)3 and its implementing regulations. Stephens then filed a motion for summary judgment requesting the trial court to enjoin the enforcement of Ordinance 13 or, alternatively, to direct the Township to issue Stephens a permit with terms consistent with those in his DEP permit. On February 10, 2005, the trial court granted Stephens’ motion, holding that Ordinance 13 was preempted by the SWMA. The Township appealed.4
The Township presents two principal arguments for our consideration. First, the Township contends that Ordinance 13 is not preempted by the SWMA.5 Second, it contends that it was authorized to set up its own permitting system by The Second Class Township Code.6
Because Hydropress is a plurality decision, it is not dispositive of the preemption issue raised in this case. We must look, then, to the 5-part test long followed by this Court for evaluating whether an ordinance has been preempted by state law. That test is as follows:
- Does the ordinance conflict with the state law, either because of conflicting policies or operational effect, that is, does the ordinance forbid what the legislature has permitted?
- Was the state law intended expressly or impliedly to be exclusive in the field?
- Does the subject matter reflect a need for uniformity?
- Is the state scheme so pervasive or comprehensive that it precludes coexistence of municipal regulation?
- Does the ordinance stand as an obstacle to the accomplishment and execution of the full purposes and objectives of the legislature?
Duff v. Township of Northampton, 110 Pa.Cmwlth. 277, 532 A.2d 500, 505 (1987). If the answer to one of these questions is affirmative, then the local ordinance will be found preempted by the state law.
To apply Duff to this appeal, we begin with a review of the SWMA. Section 104(6) of the SWMA gives DEP the duty to regulate the storage, collection, transportation, processing, treatment and disposal of solid waste.
Ordinance 13 also regulates the application of sewage sludge to agricultural land, including where and how this activity will be conducted. It prohibits the application of sewage sludge within 500 yards of a dwelling, church, school, or any other building that from “time to time” is used for human occupancy or residency. ORDINANCE 13, Article V(1). Further, Ordinance 13 requires a landowner, such as Stephens, who wishes to apply sewage sludge to agricultural land to apply for a permit from the Township. A permit will not issue unless the landowner satisfies the Township‘s standards. ORDINANCE 13, Article IV(2).
Ordinance 13 conflicts with the SWMA regulatory scheme. Under the SWMA, sludge may not be applied within 50 feet of a property line or within 300 feet of an occupied building. 25 Pa.Code §§ 271.915(c)(3), 275.202(5). This latter requirement affects, presumably, buildings on and off the property being fertilized. By contrast, Ordinance 13 allows the application of sludge on farmland up to the property line so long as it is not applied within 500 yards of a building occupied “from time to time.”13 There is a significant difference between 500 yards and 300 feet of a building, and between 50 feet and 0 feet of a boundary line. There is a difference between a building occupied from “time to time,” as it is expressed in Ordinance 13, and one actually occupied, as it is stated in the SWMA. These differences cannot be reconciled.
a municipal corporation with subordinate power to act in the matter may make such additional regulations in aid and furtherance of the purpose of the general law as may seem appropriate to the necessities of the particular locality and which are not in themselves unreasonable.
Western Pennsylvania Restaurant Ass‘n v. City of Pittsburgh, 366 Pa. 374, 381, 77 A.2d 616, 620 (1951) (citation omitted). Nevertheless, “if the general tenor of the statute indicates an intention on the part of the legislature that it should not be supplemented by municipal bodies, that intention must be given effect and the attempted local legislation held invalid.” Id.
The goal of the SWMA is to protect the “public health, safety and welfare.” Section 102(4) of the SWMA,
We begin with a consideration of Sunny Farms. In that case, Sunny Farms sought to construct a hazardous waste dump on 325 acres of land in violation of the township‘s setback requirement that a hazardous dump be sited 500 yards from existing buildings. Although this Court upheld the ordinance, we did so because we found that it did not conflict with the SWMA‘s engineering or geological standards. Sunny Farms, 474 A.2d at 60. Because the township‘s ordinance was intended to protect general health, property values and aesthetics, its purposes were found to be different from those under the SWMA.15 Thus, the ordinance was sustained against a preemption challenge.
The ordinance in Sunny Farms, as expressly stated in Municipality of Monroeville v. Chambers Development Corp., 88 Pa.Cmwlth. 603, 491 A.2d 307 (1985), has been understood to be a zoning ordinance.16 This Court has long held that because the SWMA does not expressly
In short, the result in Sunny Farms is explained by the type of ordinance that was at issue. Regardless of whether the township‘s ordinance was actually a zoning ordinance, it regulated the placement of a dump, not its operation, to the specific end of protecting township property values and aesthetics.17 By contrast, Ordinance 13 regulates an activity, i.e., the “operation” of applying sewage sludge to farmland, and it has nothing to do with aesthetics or property values, which are the traditional goals of zoning. Because Ordinance 13 regulates how, when and where sewage waste may be used to fertilize farmland, it sets “geological standards.” As we explained in Sunny Farms, “[a] local municipality cannot set geological or engineering standards stricter than those established by [DEP] for issuance of its permit.” Sunny Farms, 474 A.2d at 60 (quoting Greene Township, 379 A.2d at 1385).
We consider next whether Section 2101 of The Second Class Township Code,
[A] municipality may be foreclosed from exercising power it would otherwise have if the state has sufficiently acted in a particular field. Obviously local legislation cannot permit what a state statute or regulation forbids or prohibit what state enactments allow.
Duff, 532 A.2d at 504 (emphasis original). Ordinance 13 allows what is forbidden by the state and prohibits what is allowed by the state.21 We hold, therefore, that Ordinance 13, to the extent it regulates the application of municipal waste to agricultural land, is preempted.22
For these reasons, the decision of the trial court is affirmed.
ORDER
AND NOW, this 19th day of June, 2006, the decision of the Court of Common Pleas of the 41st Judicial District (Perry County Branch), dated February 10, 2005, in the above-captioned matter, is hereby AFFIRMED.
DISSENTING OPINION BY Judge PELLEGRINI.
I respectfully dissent. Not following the well-settled law of this Commonwealth, the majority finds that Liverpool Township (Township), a township of the second class, has no authority to regulate where sewage sludge is placed on property because it impermissibly interferes with “geological standards” set by administrative regulations of the Pennsylvania Department of Environmental Protection (DEP). I suggest that regulation has nothing to do with “geological standards” because it has nothing to do with “geology,” but has everything to do with “smell” — bad smells — caused by sewage sludge dumped from other places that affect the ability of citizens of second class townships to enjoy their homes, property and lives. Because the General Assembly recognized that the statewide administrative regulations issued by DEP do not take into consideration local conditions and only deal with the operation of waste sites, it gave second class townships the authority to enact legislation regulating the placement of sludge and other solid waste to protect the health, welfare and safety of their citizens.
In 1993, the Township adopted Ordinance 13 “pursuant to the provision of the Act of May 1, 1933, P.L. 103, as amended by the Act of May 9, 1961, P.L. 194 (
The Township filed a complaint in equity seeking an injunction against Stephens from utilizing his property as a disposal site for solid waste until he applied and received an appropriate permit from the Township. Stephens defended against the action contending that he did not need a permit from the Township because he had a permit from DEP for the agricultural utilization of sewage sludge on a portion of his farm. He argued that he did not have to seek a permit from the Township because the area sought to be regulated by the Ordinance, i.e., the disposal of solid waste, was preempted by the SWMA and the rules, regulations, standards and procedures promulgated by DEP. The trial court and the majority agrees, holding that Ordinance 13 was preempted from local regulation because it had been preempted by the General Assembly‘s enactment of the SWMA, and the Township had no authority to enact such legislation.
The Township contends Ordinance 13 was not preempted by the SWMA because it had the authority to enact Ordinance 13 with its powers given to it under the Second Class Township Code.4 Whether a state statute preempts local regulation is determined by the intent of the General Assembly. The General Assembly can specifically express its intent by either providing that municipalities may enact ordinances not inconsistent with state law or by expressly forbidding municipal regulation.5 However, the General Assembly is often silent and is not presumed to have
Once it has been determined that an area has not been preempted, local legislation cannot interpose hurdles that would stand as obstacles “to the accomplishment and execution of the full purposes and objectives of the legislature.” Klein v. Straban Township, 705 A.2d 947, 950 (Pa.Cmwlth.1998); Duff v. Township of Northampton, 110 Pa.Cmwlth. 277, 532 A.2d 500 (1987). Because recently, in Southeastern Chester County Refuse Authority v. Zoning Hearing Board of London Grove Township, 898 A.2d 680 (2006), where we held that the SWMA did not preempt local regulation, the issue in this case is whether the Township Ordinance has interposed regulatory hurdles that would frustrate the purpose of the state legislation.
Applying those standards in Sunny Farms, Ltd. v. North Codorus Township, 81 Pa.Cmwlth. 371, 474 A.2d 56, 59 (1984), we addressed the exact issues involved in this case. An operator of a landfill challenged an ordinance that prohibited the construction and operation of an underground, hazardous waste disposal facility and provided “[n]o such site for incineration or for disposition by the Sanitary Land Fill method shall be established within five hundred (500) yards of any dwelling, church, school or any other build-
plish the same purposes as set forth in this act. The Commonwealth, by this enactment, hereby preempts and supersedes the
ing or buildings which, from time to time, are utilized for human occupancy.” In that case, we held that the township had the power under Section 2101 of the Second Class Township Code,
We reject the contention that [local regulation] is preempted by the SWMA (Act 97), thus rendering the Township powerless to require a buffer zone between the waste site and occupied residences. Both Act 97 and its predecessor, the now repealed Pennsylvania Solid Waste Management Act (Act 241), are substantially similar in that each provides for extensive state regulation of the construction and operation of solid waste disposal facilities. When we construed Act 241 and failed to find explicit language evincing a legislative intent to override local zoning regulations, we allowed local regulation of sanitary landfills on the condition that engineering and geological standards were not stricter than the state‘s.
The majority attempts to distinguish Sunny Farms from the facts of this case in several ways. First, relying on Municipality of Monroeville v. Chambers Development Corp., 88 Pa.Cmwlth. 603, 491 A.2d 307 (1985), the majority tries to explain away Sunny Farms claiming what was at issue was a zoning ordinance which has not been preempted by the SWMA, while the setback here was in an ordinance regulating where sewage sludge could be deposited. We did say in a stray comment in Monroeville that the ordinance in question in Sunny Farms was a zoning ordinance, not a police power ordinance, but by examining primary sources, not secondary ones, it is
regulation of oil and gas wells as herein defined.
Second, as a fall back position, the majority then states regardless of whether it was a zoning ordinance or not, the ordinance in Sunny Farms regulated the “placement” of the waste while Ordinance 13 regulates how waste is disposed of, which has nothing to do with aesthetics or property values. In Sunny Farms, we held that a township‘s waste disposal ordinance disallowing the placement of a dump within 500 yards of any dwelling was permissible even if the landfill operator had a zoning occupancy permit to place it to the border of its property. More recently, in Hunlock Township v. Hunlock Sand and Gravel Corporation, 601 A.2d 1305 (Pa.Cmwlth.1992), we held that a second class township had the power to enact an ordinance under Section 2101 of the Second Class Township Code to forbid the maintenance, operation and utilization of a sewage sludge composting facility or solid waste facility within a 2,000 feet radius of any residence or residential area. See also Kavanagh v. London Grove Township, 33 Pa.Cmwlth. 420, 382 A.2d 148 (1978).6
Other than the Ordinance here being less restrictive — because a farmer can still farm up to his property line — and the dump in Sunny Farms and the sewage sludge composting facility in Hunlock requiring the setback area to remain fallow, I cannot see any difference that a farmer could not dump sewage sludge within 500 yards of the dwelling at issue here and those that precluded dumping in Sunny Farms and Hunlock. All those ordinances impose setback requirements regulating only “where” the waste is put down, none of which goes to the operation of the site which involves “how and when” waste can be put down.
Third, the majority then states that Ordinance 13 interferes with geological or engineering standards set by DEP, admittedly preempted, and has nothing to do with advancing aesthetics or protecting property values. A similar argument was made in Sunny Farms. In that case, the landfill operator also contended that the local 500-yard proximity requirement conflicted with and was an impermissibly more strict engineering or geological standard than that provided for by the regulation of 25 feet [now 50 feet] contained in the state regulation. Finding that a second class township had the authority to enact the regulation under [Section [2101] of the Second Class Township Code, moreover, empowers local government to protect and enhance “the quality of life of its citizens,” Sunny Farms, 474 A.2d at 60], we held that the proximity requirements were not impermissibly more strict than the narrow,
whether a township zoning ordinance prohibiting disposition of sludge from a sewage disposal plant could be applied to a disposal plant the operation of which had been authorized by the Department of Environmental Resources. Although the township legislation there controlled zoning rather than waste disposal as here....“)
Aesthetics and environmental well-being are important aspects of the quality of life in our society, and a key role of local government is to promote and protect life‘s quality for all of its inhabitants.
As to the majority‘s statement that Ordinance 13 has nothing to do with aesthetics or property values, I would suggest that aesthetics involve more than an historic village green — no matter where you live, if you had to smell another person‘s sewage sludge all day, you would say that was a matter of aesthetics and that it would adversely affect your property‘s value, not to mention the health and welfare of the community.
Finally, the majority finds that Section 2101 of the Second Class Township Code does not authorize second class townships to enact supplemental regulations of solid waste, even though we specifically said so in both Sunny Farms and Hunlock. Section 2101 of the Second Class Township Code provides:
The board of supervisors in the manner authorized by the act of July 7, 1980 (P.L. 380, No. 97), known as the “Solid Waste Management Act,” and the act of July 28, 1988 (P.L. 556, No. 101), known as the “Municipal Waste Planning, Recycling and Waste Reduction Act,” may prohibit accumulations of ashes, garbage, solid waste and other refuse materials upon private property; including the imposition and collection of reasonable fees and charges for the collection, removal and disposal thereof.
The majority then states that “Townships have always regulated junkyards, littering and trash pickup and Section 2101 simply authorizes the continuation of these worthy efforts. However, it specifically requires that such township regulation be done ‘in the manner authorized by [the SWMA].‘” (Opinion at 1036.) Under the majority‘s interpretation, because only the Second Class Township Code has such a provision, all other municipalities could prohibit the disposal of trash and ignore the SWMA altogether — the ultimate reverse preemption. The majority does not recognize that “authorized” is a grant of power coming from the SWMA and has nothing to do with departmental regulations issued pursuant to its grant of power which goes to the operation of the waste site itself, not off-site effects of the waste disposal site.
Recognizing that solid waste sites would be located in second class townships of the Commonwealth, the only sensible interpretation of the General Assembly‘s reason for enacting this provision is to interpret Section 2101 of the Second Class Township Code as we did in Sunny Farms and Hunlock, which was that under that provision, second class townships had the ability, other than through land use ordinances, to provide for setback requirements of solid waste disposal sites to insure the health, safety and welfare of the community.
For the reasons set forth in this opinion, I respectfully dissent.
Judge MCGINLEY joins in this dissenting opinion.
Notes
Except with respect to ordinances adopted pursuant to the act of July 31, 1968 (P.L. 805, No. 247), known as the Pennsylvania Municipalities Planning Code, and the Act of October 4, 1978 (P.L. 851, No. 166), known as the Flood Plain Management Act, all local ordinances and enactments purporting to regulate oil and gas well operations regulated by this act are hereby superseded. No ordinances or enactments adopted pursuant to the aforementioned acts shall contain provisions which impose conditions, requirements or limitations on the same features of oil and gas well operations regulated by this act or that accom-
(c) Sewage sludge may not be applied to agricultural land, forest or a reclamation site that is:
* * *
(3) Within 300 feet (or 91 meters) from an occupied dwelling unless the current owner there has provided a written waiver consenting to activities closer than 300 feet (or 91 meters). The waiver shall be knowingly made and separate from a lease or deed unless the lease or deed contains an explicit waiver from the current owner. This paragraph does not apply to features that may come into existence after the date upon which adjacent landowner notification is given under Chapter 275 or § 271.913(g) (relating to land application of sewage sludge; and general requirements). 25 Pa.Code § 271.915(c)(3).
Except for areas permitted by the Department prior to April 9, 1988, the land application of sewage sludge may not be conducted:
* * *
(5) Within 50 feet of a property line within which the sludge is applied, unless otherwise approved by the Department, in writing. 25 Pa.Code § 275.202(5).
The Legislature hereby determines, declares and finds that, since improper and inadequate solid waste practices create public health hazards, environmental pollution, and economic loss, and cause irreparable harm to the public health, safety and welfare, it is the purpose of this act to:
* * *
(3) require permits for the operation of municipal and residual waste processing and disposal systems, licenses for the transportation of hazardous waste and permits for hazardous waste storage, treatment, and disposal;
(4) protect the public health, safety and welfare from the short and long term dangers of transportation, processing, treatment, storage, and disposal of all wastes.
The present case differs from Hunlock and Hanzlik in several respects. First, there was no evidence presented here that Stephens’ fertilization of his fields presented the Township with a nuisance. As a matter of law, because Stephens did exactly what was permitted by DEP, it is impossible that this activity could constitute a common law nuisance, in fact or per se. Second, in Hunlock, there was no indication that the owner had a permit from DEP that regulated the placement or operation of its facility. In sum, preemption by the SWMA was not an issue in Hunlock and Hanzlik.