Petition for Writ of Certiorari — Township of Plymouth v. County of Montgomery

Supreme Court, U.S, °

88-1425 Cera

J EP F SDAAIN

JOSEPH . SPAN! a JR.

poms ae mw om

a tee

In The

Supreme Court of the United States

October Term, 1988

ry

Vv

TOWNSHIP OF PLYMOUTH,

Petitioner,

Vv.

COUNTY OF MONTGOMERY,

Respondent.

-—0

PETITION FOR WRIT OF CERTIORARI TO THE

COMMONWEALTH COURT OF PENNSYLVANIA

fay

Vv

STEPHEN M. FELDMAN

1715 Rittenhouse Square

Philadelphia, PA 19103

(215) 546-2604

Counsel of Record

and

ARTHUR LEFKOE

WIsLER, PEARLSTINE, TALONE,

Craig & GARRITY

Norristown, PA 19401-4880

(215) 272-8400

Attorneys for Petitioner

COCKLE LAW BRIEF PRINT.NG CO., (800) 225-6964

or call collect (402) 342-2831

QUESTION PRESENTED

Is an appellant’s constitutional right to due process of

the law under the Fourteenth Amendment to the United

States Constitution violated when a state appellate court,

without notice sua sponte raises and bases its decision upon

a new issue about which appellant had not presented evi-

dence or argument because a court-approved stipulation

expressly limited the issues at trial?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED i

TABLE OF CONTENTS il

TABLE OF AUTHORITIES FOAL E RMD AS ae iv

OPINIONS BELOW

SURI SP fe

CONSTITUTIONAL PROVISION INVOLVED ......... 2

STATEMENT OF THE CASE. 2

REASONS FOR GRANTING THE WRIT 6

)

THE COMMONWEALTH COURT OF PENN-

SYLVANIA DECIDED PLAINTIFF-PETI-

TIONER’S APPEAL IN A MANNER WHICH

IS INCONSISTENT WITH APPLICABLE DE-

CISIONS OF THIS COURT ....

A. The Commonwealth Court of Pennsylvania,

Inconsistent with Applicable Decisions of This

Court, Denied Plaintiff-Petitioner’s Appeal

Based on an Issue Which Had Not Been

Litigated at the Trial of a Case Where the

Issues Involved Were Specifically Limited by

a Stipulation Approved by the Trial Judge .....

GF) Fai! bemoan mate ete Nate os 8

lil

TABLE OF CONTENTS—Continued

Page

APPENDIX:

Opinion of the Commonwealth Court of

Pennsylvania (109 Pa.Cmwlth. 200, 531

i tree ccnacanthicconiansiotenoes App. 1

Orders of the Commonwealth Court of

Pennsylvania. ........ elk Ss App. 21

Adjudication of the Court of Common Pleas

a montgomery County App. 23

Decree Nisi in the Court of Common Pleas

of Montgomery County —.00W...W..... App. 96

Judgment of the Court of Common Pleas of

NE App. 97

Supplemental Opinion and Final Order of

the Court of Common Pleas of Montgomery

County .............. - App. 98

Order of the Commonwealth Court of Penn-

sylvania (denying motion to remand) ................. App. 199

Order of the Commonwealth Court of Penn-

sylvania (denying application for reargu-

oe ETE AE App. 110

Order of the Supreme Court of Pennsylvania

(denying petition for allowance of appeal) ..App. 111

Order of the Supreme Court of Pennsylvania

(denying application for reconsideration of

denial of petition for allowance of appeal) ... App. 112

iv

TABLE OF AUTHORITIES

CasES Page

Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983,

32 L.Ed.2d 556 (1972) ......... ane PEIN ARE EE 6

Holt v. Commonwealth of Virginia, 381 U.S. 131,

8 S.Ct. 1965, 14 L.Bd.2d 290 (1965) 7

In Re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed.

SN age Su 7

Wilner v. Committee on Character and Fitness,

373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1968) ........ 7

U.S. Constitution

United States Constitution, Amendment XIV,

Pe ee RNS SNNRE ae Me sR EAA a 6

In The

Supreme Court of the United States

October Term, 1988

O

TOWNSHIP OF PLYMOUTH,

Petitioner,

COUNTY OF MONTGOMERY,

Respondent.

a ( ) -

PETITION FOR WRIT OF CERTIORARI TO THE

COMMONWEALTH COURT OF PENNSYLVANIA

The petitioner Township of Plymouth respectfuily

prays that a Writ of Certiorari issue to review the judg-

ments and opinion of the Commonwealth Court of Pennsy1-

vania entered in these proceedings on September 8, 1987.

——---——-0

OPINIONS BELOW

The opinion of the Commonwealth Court of Pennsyl-

vania has been reported at 109 Pa. Cmwlth. 200, 531 A.2d

l

49 (1987). The opinions of the Court of Common Pleas

of Montgomery County have not been reported.

JURISDICTION

The judgments of the Commonwealth Court of Penn-

sylvania were dated and entered on September 8, 1987.

Petitioner filed a timely application for reargument which

was denied on November 20, 1987. Thereafter, petitioner

filed a timely petition for allowance of appeal to the Su-

preme Court of Pennsylvania which was denied on October

4, 1988. Petitioner filed a timely application for recon-

sideration of the denial of the petition for allowance of

appeal which was denied on November 28, 1988, and this

petition for a writ of certiorari was filed timely. This

Court’s jurisdiction is invoked under 28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment XIV, Section

1: [NJor shall any State deprive any person of life, liberty,

or property, without due process of law;...

STATEMENT OF THE CASE

Plymouth Township (petitioner) filed an action in

equity to enjoin Montgomery County (respondent) from

a

carrying out its announced intention to erect a 1,200 ton

per day trash to steam plant on land it owned in the town-

ship in flagrant violation of the township’s zoning ordin-

ances and related ordinances. Petitioner also brought a

declaratory judgment action against respondent seeking

a declaration that petitioner’s zoning ordinance, which

permits only a 250 ton per day trash to steam plant, is

applicable to respondent’s proposed 1,200 ton per day trash

to steam plant, and that respondent is required to comply

with petitioner’s other ordinances regarding siting, sizing,

construction, and development of iand.

In the equity action, respondent filed a counterclaim

seeking to enjoin petitioner from enforcing its ordinances

and from preventing or delaying the construction and op-

eration of the proposed 1,200 ton per day trash to steam

plant. Subsequently, the parties agreed to the consolida-

tion of the two actions, and stipulated that Phase I of the

trial would be limited to the issue of whether the court

lacked jurisdiction because respondent failed to exhaust

administrative remedies and whether petitioner’s zoning

ordinances and other ordinances were preempted by state

law. The parties also stipulated that all other issues would

he tried subsequently if necessary.

Following a non-jury trial limited to the issues of

jurisdiction and preemption, the Court of Common Pleas

of Montgomery County issued judgment against petitioner

and in favor of respondent, enjoining petitioner from in-

terfering with the construction and operation of the pro-

posed 1,200 ton per day trash to steam plant, and holding

that respondent was not required to exhaust its admin-

istrative remedies as required by the Pennsylvania Mu-

4

nicipalities Planning Code and that the Pennsylvania Solid

Waste Management Act totally preempted petitioner’s zou-

ing ordinances and its other ordinances.

Petitioner appealed to the Commonwealth Court of

Pennsylvania. The Commonwealth Court affirmed in part

and reversed in part the orders of the Court of Common

Pleas. The Commonwealth Court reversed the portion of

the trial judge’s orders which held that the petitioner’s laws

requiring building permits, sewage perm#s, and the filing

of land development and subdivision plans were not en-

forceable as to the respondent’s proposed construction of

a 1,200 ton per day trash to steam plant. The Common-

wealth Court also disagreed with the trial judge that pe-

titioner’s zoning ordinances and general ordinances were

totally preempted by the Pennsylvania Solid Waste Man-

agement Act. The Commonwealth Court held that only

the operational aspects of petitioner’s ordinances were

preempted. However, the Commonwealth Court held that

although the nonoperational aspects of petitioner’s ordin-

ances were not preempted, they were, nevertheless, invalid

as spot zoning. Although the parties had expressly stip-

ulated with the approval of the trial judge to timit the

issues at trial to preemption and jurisdiction and to defer

presenting evidence and argument on all other issues, which

would include spot zoning, to a subsequent trial if neces-

sary, the Commonwealth Court, without any prior notice

to the parties, sua sponte raised for the first time the is-

sue of spot zoning. The trial judge had not discussed or

relied upon spot zoning in reaching his decision, the par-

ties had not argued spot zoning in either the Common

Pleas Court or the Commonwea!th Court, and because the

trial was limited to the issue of jurisdiction and preemp-

tion, the parties, especially petitioner, did not submit evi-

dence on the question of spot zoning.

After the Commonwealth Court raised the issue of

spot zoning for the first time in the litigation, petitioner

filed a timely application for reargument in the Common-

wealth Court. The argument on page four of Plymouth

Township’s Application For Reargument in The Common-

wealth Court was entitled “The Deeision Of This Court

Insofar As It Is Based On The Issues Of Spot Zoning

Improperly Deprives Plymouth Township Of Due Pro-

eess Of The Law Under The Fourteenth Amendment Of

The United States Constitution.”

The Commonwealth Court denied petitioner’s appli-

eation for reargument. Petitioner then filed in the Su-

preme Court of Pennsylvania a Motion To Establish A

Briefing And Oral Argument Schedule Or, Alternatively,

Petition For Allowance Of Appeal. On page thirty of the

aforesaid petition for allowance of appeal the argument

was entitled “Without Any Prior Notice To The Parties,

The Commonwealth Court Sua Sponte Based Its Decision

On The Issues Of Spot Zoning In Contradiction Of The

Stipulation Of The Parties Which Limited The Issues At

Trial, Thus Depriving The Township Of Its Constitutional

Rights To Due Process, Its Constitutional Right To Ap-

peal, And Its Right To Counsel” and on page thirty-four

the argument was entitled “The Decision Of The Common-

wealth Court Insofar As It Is Based On The Issue Of

Spot Zoning Improperly Deprives Plymouth Township Of

Due Process Of The Law Under The United States And

Pennsylvania Constitution And The Right To An Appeal

Inder The Pennsylvania Constitution.”

The Supreme Court of Pennsylvania denied petition-

er’s petition for allowance of appeal, and petitioner timely

filed an Application For Reconsideration Of Denial Of

Petition For Allowance Of Appeal which the Court denied

on November 28, 1988.

o>)

REASONS FOR GRANTING THE WRIT

I. THE COMMONWEALTH COURT OF PENNSYL-

VANIA DECIDED PLAINTIFF-PETITIONER’S

APPEAL IN A MANNER WHICH IS INCONSIS-

TENT WITH APPLICABLE DECISIONS OF THIS

COURT

A. The Commonwealth Court of Pennsylvania, In-

consistent with Applicable Decisions of This

Court, Denied Plaintiff-Petitioner’s Appeal Based

on an Issue Which Had Not Been Litigated at the

Trial of a Case Where the Issues Involved Were

Specifically Limited by a Stipulation Approved

by the Trial Judge

The Commonwealth Court of Pennsylvania’s complete

disregard of the stipulation entered into by the parties and

the resulting impairment of the plaintiff-petitioner’s abil-

ity to adequately present its case violated the Fourteenth

Amendment to the United States Constitution. Under the

Fourtee1ith Amendment, the parties to a civil action are

entitled to procedural due process of law which includes

the right to notice and the right to be heard. Fuentes v.

Shevin, 407 U.S. 67, 92 S.Ct. 1988, 32 L.Ed.2d 556 (1972).

As this Court held in the F'wentes ease:

lor more than a century, the central meaning of

procedural due process has been clear: ‘Parties whose

rights are io be affected are entitled to be heard; and

in order that they may enjoy that right, they must

first be notified.’

407 U.S. at 80, 92 S.Ct. at 1994.

The right to be heard must necessarily embody an

entitlement to present claims and raise relevant issues.

Holt v. Commonwealth of Virginia, 381 U.S. 1381, 186, 85

S.Ct. 13865, 1378, 14 L.Ed.2d 290 (1965). Basic fairness

dictates that a tribunal provide the parties with the abil-

ity to ascertain and contest the issues which will be dis-

positive of the matter. Willner v. Committee on Character

and I’itness, 373 U.S. 96, 105, 88 S.Ct. 1175, 1181, 10_L.Ed.

2d 224 (1963).

It was fundamentally unfair for the Commonwealth

Court of Pennsylvania to sua sponte raise and decide the

issue of spot zoning where the trial below was specifically

limited to evidence and argument concerning preemption

and jurisdiction. The record clearly establishes that the

Commonwealth Court never bothered to indicate to the

parties that it would be considering the issue of spot zon-

ing. Plaintiff-petitioner had no opportunity to present

evidence on this issue, since it had abided by the stipula-

tion and restricted the evidence introduced and argued

from. Clearly, unbridled judicial discretion without con-

cern for the abilities of the parties to adequately present

their position is violative of due process. In Re Oliver,

333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948).

a

CONCLUSION

For the foregoing reasons a writ of certiorari should

issue to review the judgments and opinion of the Common-

wealth Court of Pennsylvania.

Respectfully submitted,

STEPHEN M. FELDMAN

1715 Rittenhouse Square

Philadelphia, PA 19103

(215) 546-2604

Counsel of Record

and

ARTHUR LEFKOE

WisLER, PEARLSTINE, TALONE,

Craic & Garrity

Norristown, PA 19401-4880

(215) 272-8400

Attorneys for Petitioner

App. ]

APPENDIX

Township of Plymouth, Appellant v. County of

Montgomery, Appellee.

Township of Plymouth, Appellant v. County of

Montgomery, Appellee.

Argued June 10, 1987, before President Judge

CRUMLISH, JR, and Judges Craic, MACPHAIL, DOYLE

and Barry.

OPINION BY JUDGE CraiG, September 8, 1987:

In this case, where a proposed county refuse dispos-

al plant faces prohibition by township enactments, we

App. 2

must recognize statutory and judicial distinctions be-

tween ordinance provisions governing where the loca-

tion of the facility may be (zoning provisions) and, on

the other hand, how it may be technically designed and

operated (operational regulations).

Such an analysis, mindful of a meaningful classifica-

tion of local enactments, is necessary to resolve this

cases two chief issues:

1. Did the trial court, in~an equity and

declaratory judgment proceeding, have subject

matter jurisdiction to decide ordinance validity

questions without requiring the county first to

exhaust administrative remedies for the invalida-

tion of zoning provisions under the Pennsylvania

Municipalities Planning Act (MPC)?!

2. Has the Solid Waste Management Act?

preempted the townships power to enact and

enforce both the operational regulations and the

zoning provisions on which it seeks to rely?

The Proceedings

In the Court of Common Pleas of Montgomery

County, Plymouth Township simultaneously filed

declaratory judgment and equity actions against

Montgomery County, seeking a declaration that the

countys proposed 1200-ton-per-day resource recovery

facility, a trash-to-steam refuse disposal plant, would vi-

olate township ordinances, and also seeking an injunc-

tion to bar the county from further action to effectuate

that project.

‘ Act of July 31, 1968, P.L. 805, as amended, $1004, 53 PS.

11004.

*Act of July 7, 1980, PL. 380, §§101-1003, 35 PS.

§§6018. 101-6018. 1003.

App. 3 aa

After Judge Corso denied the townships request for

a temporary restraining order, the county responded to

the complaints and, in the equity action, by counter-

claim sought to have the court invalidate the ordinances

and enjoin the township from blocking construction and

operation of the proposed plant.

Following the court's rejection of the townships pre-

liminary objections to the counterclaim, the parties

stipulated to the consolidation of the two cases and

agreed to an initial trial phase limited to evidence perti-

nent to the issues of jurisdiction and preemption.

After a thorough hearing, the trial judge, Judge

BUCHER, issued an adjudication in which he adopted nv-

merous detailed findings of fact and conclusions of law,

pursuant to which he ruled the questioned ordinance

provisions to be unenforceable with respect to the

countys proposed plant. He granted the countys coun-

terclaim by enjoining the township from taking any ac-

tion against the county's project other than comments

and objections to the Department of Environmental Re-

sources (DER) and the Environmental Hearing Board.

He confirmed that decision following post-trial motions.

Following the townships appeals to this court, the

county sought the application of extraordinary jurisdic-

tion by the Supreme Court, which remanded the case

to this court for expedited disposition.

Facts

This court, after reviewing the record, discerns no

abuse of discretion by the trial judge with respect to the

findings of fact, in that the record contains substantial

evidence supporting all of them. Reference to specific

findings will follow, as pertinent.

A condensed chronology of events, drawn from those

findings, can provide the factual background for analvy-

App. 4

thorized the county to develop a countywide waste man-

agement plan under the SWMA. After the county, in

1983 and 1984, in consultation with the municipalities.

considered the establishment of an 1800-ton-per-dav

plant in the township for the district in which the town-

ship was located, a Montgomery County Solid Waste

Management Committee, on which the township was

represented, proceeded in 1985 to prepare a request for

proposals (RFP) for a 1200-ton-per-day plant to be locat-

ed on county-owned property in the township. In Feb-

ruary of that year, a letter of the township solicitor in-

dicated that there would be “no problem’ with that size

of plant. 7

On April 15, 1985, the township adopted an amend-

ment to its zoning ordinance, establishing a 121-acre re-

source recovery district and allowing a plant of 1200-ton

(throughput) capacitv, with height maximum at 165

feet.

However, after the development of community op-

position to such a plant in the township, the township

council proceeded on April 29, 1985 to repeal that zon-

ing amendment, only two weeks after its enactment.

Although the stated reason for the repeal was inade-

quate advertising, the township did not attempt to

readvertise it.

After the county had issued the RFP for the 1200-

ton facility omMay 7, 1985, the township council issued

a public declaratié@n on May 29 that they were “unani-

mously opposed to any type of solid waste disposal fa-

cility within the township.

Thereafter, in connection with township delibera-

tions, the township solicitor advised the council that

“limitation of tonnage for trash transfer stations” could

be illegal, and also that this court had decided that zon-

ing could not be used to regulate the method of opera-

tion of a landfill or trash transfer station.

App. o

On July 8, 1985, the township passed the three

ordinances chiefly at issue here, Nos. 934, 936 and 937.

In December, 1985, the county completed and

adopted its Municipal Waste Management Plan calling

for development of the 1200-ton facility within the dis-

trict designated by the township for a resource recovery

facility. After DER issued preliminary approval of the

plan, the county entered into contracts with private

companies to construct and operate the plant in ques-

tion. Seventeen of the twenty-four municipalities in the

district have contracted with the county to take their

municipal waste for disposal at the plant. The County

Industrial Development Authority has also issued bonds

to finance the construction costs. ¥%;

While the-DER approval process was underway in

1986, the township advised the county that the town-

ship regarded the proposed facility as “illegal” and that

the township would not issue a permit for it unless a

court invalidated the township ordinances.

This litigation followed.

Provisions of the Ordinances

Ordinance No. 934, the Solid Waste Management

Ordinance, is not part of the townships Zoning Ordi- —

nance. It regulates the processing and disposal of waste

by requiring operators to obtain permits, pay permit

application fees up to $100,000 and pay user fees of $.50

per ton for waste processed. That ordinance also

regulates the disposal of waste at the facility, and the

transportation of waste with respect to details of routing

and route cleaning, vector control, vehicle size and

emergency operational plans.

Ordinance No. 936, a zoning ordinance amendment,

reestablishes the district regulations for the resource re-

covery district. It sets the maximum height of

EE

App. 6

buildings, exclusive of stacks, at 40 feet, as compared to

the maximum of 165 feet in the repealed resource re-

covery district regulations, and as compared to maxi-

mum height limitations of 100 to 200 feet in adjacent

areas zoned for industry. This ordinance lists a resource

recovery facility—i.e., a refuse disposal plant—as allow-

able only by conditional use approval granted by the

township council. One of the conditional use standards

limits a resource recovery facility to a design capacity

not greater than 250 tons per day, as compared to the

1200-ton daily capacity allowable under the repealed

version of the resource recovery district regulations.

Ordinance No. 937 amended the zoning map to de-

scribe the resource recovery district as being 36.3 acres

in area, instead of the 121 acres previously allowed, and

as including only 10 acres of the county-owned 70 acres.

In addition to the foregoing ordinances, Judge

BUCHERS adjudication also refers to Ordinance No. 837,

subdivision and land development regulations under the

MPC; section 5 of the townships Code, requiring a

building permit; section 10 of the townships Code,

subjecting the proposed facility to air pollution control

approval; and section 23 of the townships Code, requir-

ing a permit for connection of the facility to the East

Norriton-Plymouth Joint Sewer Authority line. Al-

though the findings of fact contain no reference to these

provisions, Judge BUCHERS opinion also declared them

to be invalid as applied to the county's proposed plan.

Jurisdiction

As Judge BUCHER correctly decided, the trial court

had subject matter jurisdiction in these equity and

declaratory judgment actions to adjudicate all of the

issues which the parties presented. Only the township

has attacked the court's jurisdiction and, of course, only

with respect to the county's counterclaim; equity juris-

App. 7 sii

diction with respect to the townships initial action to

enjoin an alleged threatened violation of its zoning is

expressly confirmed by section 617 of the MPC, 53 P.S.

§10617.

In analyzing the jurisdictional question, the distinc-

tion between the operational regulations and the zoning

provisions immediately becomes useful.

With respect to the operational regulations at issue,

consisting of the solid waste management ordinance, No

934 and the operational provisions of Ordinance No.

936, regulating how the refuse disposal plant should be

technically designed and conducted with respect to ca-

pacity and other specifications, a need to exhaust zoning

remedies under the MPC is clearly not present. With-

out any question concerning resort to zoning proce-

dures, the courts have reviewed and negated municipal

solid waste operational regulations in Crown Wrecking

Co. Inc. vt. Township of Ross, 93 Pa. Commonwealth

Ct. 268, 500 A.2d 1293 (1985) (ordinance regulating the

operation of landfills and the transportation of wastes),

and Municipality of Monroeville v. Chambers Develop-

ment Corporation, 8& Pa. Commonwealth Ct. 603, 491

A.2d 307 (1985) (regulating landfills as to times of opera-

tion).

In the latter case, this court made clear that the reg-

ulation of waste disposal operations “presents an issue

which is qualitatively different from the question of reg-

ulating the physical location of a proposed landfill.” We

noted that the municipality sought to regulate the hours

and days of the landfill operation, “not the physical con-

figuration of the site, nor the land use. .. .” 88 Pa

Commonwealth Ct. at 608, 49] A.2d at 310. In other

words, the operational regulations did not fall within the

category of the land use controls accomplished by zon-

ing, under the MPC.

|

Apps

Consistently, Judge BUCHER here held, and we agree,

that zoning administration procedures could not provide

relief with respect to the operational regulations on

— which the township here relies; the insufficiency of the

administrative remedy confirms the propriety of trial

courts initial jurisdiction. Feingold v. Bell Telephone Co.

of Pennsylvania, 477 Pa. 1, 6, 383 A.2d 791, 793 (1977).

With the common pleas court initial jurisdiction be-

ing thus clearly appropriate for the operational regula-

tions, there is no doubt that, in a case such as this one,

zoning provisions—which the township has inextricably

connected with the operational regulations—are, and

should be. also cognizable in the same jurisdiction for

adjudication. When the public welfare calls for the

simultaneous adjudication of zoning provisions along-

with other matters, as where ordinance provisions and

public contracts and projects are interrelated as in this

case, the administrative process is not adequate and eq-

uity jurisdiction is appropriate to achieve a prompt and

unified resolution. Duquesne Light Co. v. Upper St.

Clair Township, 377 Pa. 323, 105 A.2d 287 (1954) (zon-

ing questions affecting transmission line construction

project, cognizable in equity). Also pertinent is

Gladwyne, Inc. v. Township of Lower Merion, 409 Pa.

441. 187 A.2d 549 (1963) (zoning issues, related to

developers agreement with township, cognizable in

equity). The exhaustion of administrative remedies is

not warranted when that process would be unfeasible.

Borough of Green Tree v. Board of Property Assess-

ment, 459 Pa. 268, 328 A.2d 819 (1974).

Judge BUCHER also correctly determined that equity

jurisdiction was appropriate in view of the futility of

pursuing township approval in the face of the townships

explicit and obdurate opposition, as detailed in the find-

ings of fact, and on the basis of the irreparable harm

EOS

App. 9

facing the county and the public as a consequence of the

importance of the project to the general welfare of the

larger community. Duquesne Light.

Finally, the trial court's jurisdiction was not deficient

by reason of the point, newly raised by the township

here, that the county’s contractor and other municipal-

ities in the district were indispensable parties whom

the county has failed to join. Clearly, the presence of

those parties is not necessary to the adjudication of the

validity of the townships ordinances in relation to the

courity; certainly, Plymouth Township as a plaintiff did

not join those additional parties as defendants whose in-

terests would have to be involved in the case. The possi-

ble standing of those defendants to seek intervention on

their own motion, to advance any interests shared by

them with one of the original parties, does not mean

that the presence of those parties is indispensable, of

course.

Preemption of Townships Operational Regulations

Soundly relying upon his review of the SWMA and

applicable decisions of this court dealing with the effect

of that statute, Judge BUCHER ruled in the trial court

here that the pervasive powers conferred by the legisla-

ture upon DER with respect to the transportation, pro-

cessing, treatment and disposal of solid waste, SWMA

§§102-202(b), 35 P.S. §§6018.102-6018.202(b), preempt-

ed municipal powers to govern those functions by oper-

ational regulations. As noted above, the townships oper-

ational regulations here purport to require permits for

waste processing. regulate the transportation and dis-

posal of the waste, and prescribe limits upon the design,

capacity and size of waste disposal facilities. Because

municipal power to regulate resource recovery facilities

or disposal plants has been preempted just as certainly

as local power to regulate waste disposal by means of

|

App. 10

landfills, the trial court correctly followed this court's

conclusion in Municipality of Monroeville, which stated:

Given the legislatures specific, detailed provi-

sion that municipalities may regulate the ‘stor-

age and ‘collection’ of solid waste, the exclusion

of this ‘disposal’ from the definition of ‘storage,’

and the obvious omission of any other permitted

areas, we conclude that the legislature did not

intend municipalities to have the power to regu-

late any aspects of the operation of a sanitary

landfill.

88 Pa.) Commonwealth Ct. at 609, 491 A.2d at 311.

Accordingly, the trial judge noted that, “while DER

is granted broad powers to promote area-wide planning

and to regulate all areas of solid waste management,

municipalities are responsible only for implementing

their own plan and, in furtherance of this responsibility,

may regulate only in the areas of storage and collection.”

We agree with the trial judge that there is controlling

significance in the point that the SWMA recognizes

municipal legislation over waste disposal operations

only in the provision that “any such municipality may

adopt ordinances, regulations and standards for the stor-

age and collection of municipal waste. .. .” SWMA

§202(b), 35 P.S. §6018.202(b).

Shortly after Municipality of Monroeville, this court

affirmed the view that the state had preempted the field

of operational regulations of waste by adopting the opin-

ion of Judge NaRICK, then of the Court of Common Pleas

of Allegheny County, in Crown Wrecking Co., which

viewed the SWMA as unequivocally excluding the mu-

nicipalities from the regulation of waste disposal—in

that case also by landfill.

Accordingly, Ordinance No. 934, the townships

solid waste management ordinance, has no legal effect.

Similarly, the operational provisions of Ordinance No.

App. 11

936, limiting the capacity, design and size of resource

recovery facilities, are also of no effect. The township

council's power, through the conditional use approval

provision, to subject such facilities to operational, de-

sign capacity or size conditions is also rendered nuga-

tory by the preemptive effect of the SWMA.

Preemption as to Township Zoning

Although Municipality of Monroeville confirms state

preemption as to waste disposal operational regulations,

our opinion also contains clear statements—which

should not be overlooked—of this court's repeated con-

clusion that the present SWMA does not preempt local

zoning provisions as such. The opinion in Municipality

of Monroeville states:

After the passage of the current Solid Waste

Management Act. this court has continued to

hold that, with respect to the location of landfill

sites, the new Act does not preempt local zoning

regulations. In Movers Landfill, Inc. v. Zoning

Hearing Board of Lower Providence Township,

69 Pa. Commonwealth Ct. 47, 450 A.2d 273

(1982), the court (in a footnote) rejected the con-

tention that both Acts wholly preempted the

subject of solid waste management and therefore

prevented the application of a local zoning ordi-

nance to prohibit the expansion of a present,

lawful landfill into an area zoned for industrial

use.

The courts most recent consideration of the

preemption question, Sunny Farms, Ltd. v.

North Codorus Township, 81 Pa) Common-

wealth Ct. 371, 474 A.2d 56 (1984), involved a

zoning ordinance requiring a buffer zone around

a nronosed hazardous waste disposal facility. We

App. 1?

there noted (1) the presumption that the legisla-

ture knew the courts construction of the former

act when it drafted the new legislation and (2)

the specific provision of section 105ih) of the Act.

35 P.S. §6018.105(h), that a state certificate of

public necessity supersedes local prohibition of

hazardous waste facilities; therefore, we conclud-

ed that the local ordinances mandate of a buffer

zone was not ousted by preemption.

88 Pa. Commonwealth Ct. at 607-08, 491 A.2d at 310.’

Thus, this court has concluded, the internal content of

the SWMA quite explicitly recognizes local zoning

regulations and indicates that local zoning is not

preempted by the enactment of the statute itself nor by

administrative implementation of it, short of issuance of

a certificate of public necessity by the Environmental

Quality Board. which applies only to hazardous waste

facilities. Because this case does not involve hazardous

waste disposal, the record does not indicate that the

Environmental Quality Board has issued any such

superseding certificate of public necessity here.

However, appropriate additional reference should be

made to Department of General Services v. Ogontz

Area Neighbors Association, 505 Pa. 614, 483 A.2d 448

(1984), which has been addressed by the briefs of both

sides. In Ogontz, the opinion (1) frankly recognized the

difficulty of distinguishing the contrary results achieved

by the “balancing” approach in Pemberton Appeal, 434

Pa. 249, 252 A.2d 597 (1969), as compared to City of

Pittsburgh v. Commonwealth, 468 Pa. 174, 360 A.2d

* Section 10h), above mentioned, reads as follows:

‘h) Issuance of a certificate of public necessity under this

section shall suspend and supersede any and all local laws

which would preclude or prohibit the establishment of a

hazardous waste treatment or disposal facility at said site,

including zoning ordinances.

App. 13

607 (1976) revd in part 505 Pa. 614, 626, 483 A.2d 448,

454 (1984), (2) decried the lack of certainty and predict-

ability inherent in the balancing approach, and (3)

called for a return to statutory construction techniques,

noting in particular the provision of the Statutory Con-

struction Act, 1 Pa. C. S. §1921(c)(6), that legislative in-

tent may be determined by considering, among other

things, the consequences of a particular interpretation.

With respect to local zoning powers, the Supreme

Court noted that the subordination of local zoning, if

uniformly followed, would frustrate locai plans in every

case where the plan of the Commonwealth (or other

agency) conflicted with the city plan. On the other

hand, the Supreme Court reasoned that recognition of

local zoning powers would not necessarily frustrate a

program under state law because “the loss of one loca-

tion might well be compensated for by substitution of

another.” 505 Pa at 625, 483 A.2d at 455.

Although that view, that local zoning and a state pro-

gram could coexist, permitted the Supreme Court, in

Ogontz, to uphold the locational decision pattern of the

city under its zoning ordinance, the SWMA in this case

introduces a complicating factor which must be consid-

ered, those provisions of SWMA section 201, 35 P.S.

§6018.201, that expressly, and with apparent ~fore-

thought, contemplate municipal participation, along

with other municipalities and the county, in the formu-

lation of comprehensive plans for waste management

which will include the land planning decisions affecting

location.

That sec ion evinces an orderly and_ sensible

scheme.‘ Municipalities have the initiative in generat-

* Section 201. of the SWMA. 35 P.S. §6015.201. confers upon

municipalities extensive planning powers and duties as to solid

waste. Under subsection (b), the municipality must submit to DER

an officially adopted plan for a municipal waste management sys-

tem. The municipality may request the county in which it is located

App. 14

ing waste management plans and are encouraged to in-

tegrate that planning with the land planning programs

of their own municipality, adjacent municipalities and

the county. Because ready agreement among numerous

parties cannot be automatically assured in such joint

planning efforts, SWMA section 201 gives DER a ref-

eree-like power to approve or disapprove plans overall,

to perform that function, or, where more than one municipality is

involved, they may act jointly or through action of the county with

the concurrence of the affected municipalities. Subsection (d) states

that every plan “shall delineate areas where municipal waste man-

agement systems are in existence’ as well as “areas where the mu-

nicipal waste management systems are planned to be available

within a ten-vear pernod.” Legislative intention to keep the munici-

pal zoning power alive with respect to municipal.waste manage-

ment system planning is indicated by subsection (e)(2), which

specifies that:

(e) Every plan shall:

(2) take into consideration all aspects of planning, zoning,

population estimates, engineering and economics so as to

delineate with precision those portions of the area which

may reasonably be expected to be served by a municipal

waste management system within ten years of the submis-

sion of a plan. .. . (Emphasis added.)

Subsection (f) expressly contemplates that the plan “shall be

reviewed by appropriate official planning agencies within a munici-

pality,” as well as area-wide planning agencies and county planning

c___agencies “for consistency with programs of planning if one exists.

With the statute thus indicating that municipal waste management

system plans include, but are not limited to, locational matters af-

fected by zoning and planning, subsection (g) expressly authorizes

the department “to approve or disapprove plans for municipal waste

management systems submitted in accordance with the Act. In

addition, subsection (h) authorizes DER to approve or disapprove

revisions of plans and subsection (1) authorizes the department to

order, or obtain injunctions requiring, municipalities to implement

the plans which they have submitted.

SS tt—™te

App. 1)

and the power to enforce them when implementation is

necessary.

Under the present record, the townships repealed

zoning ordinance apparently was in accordance with a

joint plan which has been in process. Even the present

zoning map designation in Ordinance No. 637 remains

applicable to part, but only part, of the county land

which marked the location of the facility as contemplat-

ed.

Although the SWMA evinces an intention to recog-

nize local zoning power when it is used in an integrated

fashion (and when not superseded by a certificate of

public necessity as to hazardous waste disposal), that af-

firmation of local zoning power provides no guarantee

that the revised present zoning approach of the town-

ship is specifically valid under the principles governing

legal zoning.

Zoning Ordinance Validity

The trial judge here found the zoning provisions in-

valid, along with the operational regulations, by reason

of preemption. Because our pursuance of the Supreme

Court's Ogontz principles and our own precedents bars

a conclusion that the zoning provisions here are negated

by preemption, we turn to consider whether we must

nevertheless affirm the trial judges invalidation of the

zoning provisions on other grounds, as we may do if the

law so requires. E. J. McAleer & Co. tv. Iceland

Products, Inc., 475 Pa. 610, 613, n. 4, 381 A.2d 441,

443, n. 4 (1977), Department of Public Welfare v.

Dauphin County Social Services for Children and

Youth, 90 Pa. Commonwealth Ct. 295, 495 A.2d 214,

216 (1985).

Of particular note here is the trial judges statement,

virtually a finding of fact, indicating that the township

App. 16

did not adopt these zoning provisions for legitimate land

planning purposes. The trial judge said:

The circumstances surrounding the passage of

the ordinances and the limitations which they

impose indicate to the court that ordinances No.

934, 936, 937 were designed and enacted by

Council to exclude the proposed facility from the

Township and to restrict and regulate the opera-

tions of any facility that will eventually be con-

structed.

The trial court took particular note that the council

chairperson admitted that the goal was to stop the coun-

ty resource recovery facility if possible.

So perceived, the unavoidable conclusion is that the

zoning provisions in this case are classic examples of

spot zoning—-zoning provisions adopted to control the

use of a specific area of land without regard to the rela-

tionship of those land use controls to the overall plan

and the general welfare of the community.

Judge Couns of this court has articulated the true

nature of spot zoning in Pace Resources v. Shrewsbury

Township Planning Commission, 89 Pa. Commonwealth

Ct. 468, 492 A.2d 818 (1985), pointing out that, proper-

ly understood, it is more than just discriminatory or

“island” zoning—the land area involved being only one

of the determining factors—in that:

Futhermore, our Supreme Court has cautioned

us that we should not limit our inquiry to the

mere physical aspect and characteristics of the

land, but we should also consider how the rezon-

ing affects the public health, safety, morals, and

general welfare and how it relates to the town-

ships comprehensive plan. Shubach, 461 Pa at

382-83 n. 14, 336 A.2d at 336 n. 14.

The key point is that when a municipal governing body

puts on blinders and confines its vision to just one iso-

lated place or problem within the community, dis-

— |

App. li

regarding a community-wide perspective, that body is

not engaged in lawful zoning, which necessarily

requires that the picture of the whole community be

kept in mind while dividing it into compatibly related

zones by ordinance enactments. In other words, legis-

lating as to a spot is the antithesis of zoning, which nec-

essarily functions within a community-wide framework.

The MPCs basic zoning authorization, in section 601,

53 P.S. §10601, describes the very purpose of zoning

ordinances as being “to implement comprehensive

plans and to accomplish any of the purposes of this act.”

Those purposes, spelled out in section 105 of the MPC,

53 P.S. §10105, inclucs the following:

To protect and promote safety, health and

morals; and

To accomplish a coordinated development of

municipalities.

Nothing in the MPC mandates the adoption of a specific

written master plan or comprehensive plan as a separate

document. Those sections 601 and 105, together with

the mandate that zoning ordinances contain a statement

of community development objectives, MPC §606, 53

P.S. §10606, clearly require that zoning, to be valid,

must be in accordance with a rational and well consid-

ered approach to promoting safety, health and morals

and a coordinated development of the whole municipal-

ity. The classic statement of the same- principle is in

Haar, In Accordance with a Comprehensive Plan, 65

Harv. L. Rev. 155 (1955), in which Professor Haar

pointed out that the essence of sound zoning—as dis-

tinguished from spot zoning—is zoning enacted on a

comprehensive and well considered basis.

As against this test, and in light of the tmal courts

findings of fact, Plymouth Townships purported zoning

provisions in this case are not valid under the MPC. Al-

though zoning amendment ordinances 936 and 937 did

not technically amend the repealed zoning provisions

App. 1s

which had established a resource recovery district in ac-

cordance with the countvs waste disposal plan, their ac-

tual effect and legal impact is precisely the same as if

Nos. 936 and 937 had amended the zoning ordinance to

(1) shrink the 12l-acre district. embracing all of the

countvs seventy acres, down to a 36-acre district, (2)

impose prohibitive requirements within that shrunken

district, and (3) rezone 60 of the countys 70 acres into

industrial district classifications not permitting waste

disposal facilities at all.

In view of the invalidity of that zoning pattern ac-

complished by Ordinances Nos. 936 and 937, those

ordinances, as well as Ordinance No. 934, were proper-

lv held to be invalid by the trial judge.

General Land Development and Building Permit

Regulations

Although Plymouth’s air pollution control, section 10

of its Code, logically also falls within the scope of opera-

tional matters preempted, nothing in this record and no

principles of law support the invalidation of Plymouth

Townships Subdivision and Land Development Ordi-

nance No. 837, its building permit requirements under

its building code, or its sewer connection procedures

(Code §23), even as applied to the countys project.

When operational regulations and zoning provisions

have been ruled invalid with respect to a particular

project or development, our decisions have not held that

the project proponent is also free from valid procedural

and permit regulations which apply to all development.

Classically, the Supreme Court, when invalidating zon-

ing provisions, has mandated that the requested land

use shall be allowed, subject to lawful building proce-

dures and regulations of the municipality which are ap-

plicable. See Casey v. Zoning Hearing Board of

Warwick Township, 459 Pa. 219, 328 A.2d 464 (1974).

For example, Subdivision and Land Development

Ordinance No. 837 rests upon article V of the MPC,

—

App. 19

which empowers municipalities to provide assurance

that particular land developments shall be properly in-

corporated into the overall facilities of the municipal-

itv—including its road patterns—in accordance with

concerns affecting the health, safety and general wel-

fare.

Plymouth Township doubtless is well aware that the

applicability of these general regulations and proce-

dures to the county waste disposal development in no

way enables the township to abuse those procedures or

use them to effectuate obdurate obstruction. Raum v.

Tredyffrin Township Board of Supervisors, 29 Pa

Commonwealth Ct. 9, 370 A.2d 777 (1977).

Relief

The relief to be afforded the county is governed by

MPC §101i(2), 53 P.S. §11011(2), as well as by those

classic principles of zoning relief in Pennsylvania which

are concerned with providing a remedy which is effec-

tive but not excessive.

Section 1011(2) provides that, if a court finds devel-

‘opment restrictions to be unlawful, the court may

“order the described development or use approved as to

all elements.” or may “order it approved as to some el-

ements and refer other elements to the governing body,

agency or officer having jurisdiction. . . .” In this case,

that approach calls upon the trial court to bar township

interference with the development and operation of the

resource recovery facility on the planned site by the

county, but with a recognition that the township, in

view of its responsibility to citizens and their property

outside that site, may apply its established subdivision

and land development regulations, and sewer connec-

tion requirements, with respect to the physical relation-

ship of the countys site as to the roads. sewers and

other land outside it.

App. 20

Conclusion

Accordingly. the trial courts order in the declaratory

judgment case, on appeal here at No. 3313 C.D. 1986,

will be affirmed insofar as it declares and adjudges

Plymouth Township Ordinances Nos. 934, 936 and 937

to be invalid and unenforceable, and also adjudges sec-

tion 10 of the Plymouth Township Code to be un-

enforceable with respect to the county project involved

in this case. That order will be modified to declare that

the Solid Waste Management Act has preempted the

field as to the regulation of transportation, processing

and disposal of municipal waste, but not as to lawful

zoning concerning the location thereof, it must be re-

versed to the extent that it declares sections 5 and 23 of

the Plymouth Township Code te be unenforceable.

The trial courts order in the equity case. on appeal

here at No. 3312 of 1986, is affirmed as stated, except

that the injunction shall also not prevent the lawful ap-

plication by Plymouth Township to the county and its

contractors of the requirements of Plymouth Township

Ordinance No. 837 and sections 5 and 23 of the Plym-

outh Township Code.

Finally, Plymouth Townships motion to reconsider

President Judge CRUMLISHS earlier order denying the

townships request to remand the case to the trial court

for taking additional evidence, will be denied. The

township proposed to offer additional evidence on the

factual question of whether or not a “trash crisis” exists

in the region involved, as that factual point might relate

to the matter of preemption. However, as the foregoing

analysis illustrates, a conclusion as to preemption turns

primarily upon the resolution of a question of law, de-

rived from statutory interpretation.

Judge MaCPHAIL concurs in the result only.

App. 21

TOWNSHIP OF PLYMOUTH, ) IN THE COMMON-

Appellant ) WEALTH COURT OF

j )

)

v. PENNSYLVANIA

COUNTY OF MONTGOMERY, NO. 3212 C.D. 1986

Appellee )

ORDER

NOW, September 8, 1987, the order of the Court of

Common Pleas of Montgomery County dated October 29,

1986 affirming and incorporating decree nisi dated Au-

gust 12, 1986 is hereby affirmed as stated in paragraphs

1 and 2 of the decree nisi, except that Plymouth Township

is not enjoined from lawfully applying the requirements

of Plymouth Township Ordinance No. 837 and sections 5

and 23 of the Plymouth Township Code to Montgomery

County and its contractors with respect to the project in-

volved in this ease.

Plymouth Township’s motion for reconsideration of

this court’s order of June 8, 1987, denying the township’s

motion to remand to the trial court for the taking of addi-

tional evidence, is hereby denied.

/s/ David W. Craig

DAVID W. CRAIG, Judee

App. 22

TOWNSHIP OF PLYMOUTH, ) IN THE COMMON-

: Appellant ) WEALTH COURT OF

/ v. ) PENNSYLVANIA

COUNTY OF MONTGOMERY, ) NO. 3313 C.D. 1986

Appellee )

ORDER

NOW, September 8, 1987, the order of the Court of

Common Pleas of Montgomery County, dated October 29,

1986, affirming and incorporating declaratory judgment

order of August 12, 1986, is hereby affirmed insofar as it

declares and adjudges Plymouth Township Ordinances

Nos. 934, 936 and 937 to be unenforceable by reason of in-

validity and also insofar as it declares and adjudges see-

tion 10 of the Plymouth Township Code to be unenforee-

able with respect to the county project involved in this

case; the order provisions as to preemption are modified

to declare that the Solid Waste Management Act has pre-

empted the field regulating the transportation, processing

and disposal of municipal waste, but not as to lawful zon-

ing concerning the location of plants and buildings for

such purposes; and the provisions declaring sections 5 and

23 of the Piymouth Township Code to be unenforceable

are reversed.

Plymouth Township’s motion for reconsideration of

this couri’s order of June &, 1987, denying the township’s

motior to remand to the trial court for the taking o¥ addi-

tional evidence, is hereby denied.

/s/ David W. Craig

DAVID W. CRAIG, Judge

_

App. 23

IN THE COURT OF COMMON PLEAS OF

MONTGOMERY COUNTY, PENNSYLVANIA

CIVIL ACTION

TOWNSHIP OF PLYMOUTH ) NO. 85-19292

vs. ) IN EQUITY

COUNTY OF MONTGOMERY )

TOWNSHIP OF PLYMOUTH ) NO. 85-19293

vs. x ) PECLARATORY

COUNTY OF MONTGOMERY ) JUDGMENT

August 12, 1986 ADJUDICATION

BUCHER, J. -

Plymouth Township seeks to enjoin Montgomery

County from proceeding with plans to construct a 1,200

tons per day resource recovery facility on County owned

land in Plymouth Township. The Township also seeks a

declaratory judgment that the proposed facility violates

its zoning and other permitting ordinances.

On December 11, 1985, Plymouth Township (‘‘Town-

ship’’) filed two separate actions against Montgomery

County (‘‘County’’). In No. 85-19292, filed in equity, the

Township seeks to enjoin the County from taking any fur-

ther action to effectuate construction of the County’s pro-

posed 1,200 tons per day capacity resource recovery facil-

ity, claiming that such construction would violate Town-

ship zoning ordinances. In No. &5-19293, the Township

secks a declaratory judgment that the proposed facility

violates its permitting ordinances. On December 11, 1989

the Township also filed a Motion for a Temporary Re-

LS

App. 24

straining Order, which was denied by the Honorable S.

Gerald Corso on December 12, 1985.

(mn January &, 1986, the County filed an Answer and

Nfw Matter to the Complaint for Declaratory Judgment

and an Answer, New Matter and Counterclaim to the Com-

plaint in Equity. The*ounty requests the court to declare

that the Township ordinances have been preempted by the

Pennsylvania Solid Waste Management Act; that the ordi-

nanees are unlawful and unenforceable; and to enjoin Ply-

mouth Township from taking any actions under the ordi-

nanees to block the construction and operation of the pro-

posed resource recovery facility.

The Township then filed Preliminary Objections to

the Answers, New Matter and Counterclaim whieh the

Court denied by Order dated March 20, 1986. By this

time, the parties had stipulated to the consolidation of the

two eases. The Township filed its Reply to the County’s

Answers, New Matter, and Counterclaim on April 11, 1986.

On April 30, 1986, the parties entered into a Stipulation

agreeing that the evidence at trial would be limited to the

issue of preemption. The Stipulation was approved by

the court on May 1, 1986. Thereafter, the trial eom-

meneed on May 6, 1986, at which time the parties arreed

to also present evidenee on the issue of jurisdiction.

ISSUES

1. Whether or not the court may exercise jurisdiction to

determine the validity of the Township’s ordinances

when the County did not exhaust administrative rem-

edies under the Pennsylvania Municipalities Planning

Code.

2. Whether or not the Solid Waste Management Aet pre-

empts Plymouth Township from regulating the trans-

portation, processing and disposal of solid waste.

—

|

App. 25

FINDINGS OF FACT

The following proposed findings of faet submitted by

the parties are supported by clear and substantiating evi-

denee and are therefore adopted by the court and incor-

porated herein by reference. As to the County—all of the

County’s proposed findings of faet except nos. 19, 20, 21,

22 and 60. (attached and ineorporated herein as Exhibit

‘*A’’). As to the Township—nos. 1, 2, 3, 5, 6, 7, 8, 9, 10,

15, 16, 17, 18, 22, 23, 24, 29, 33 (subject to qualifications

created by case law), 34 and 35 (subject to qualifications

created by ease law) (attached and incorporated herein

as Exhibit ‘‘B’’)

DISCUSSION

The first issue to be resolved is whether or not the

court has the jurisdiction to determine the validity of the

Township’s ordinanees despite the fact that the County

did not exhaust its administrative remedies under the

Pennsylvania Municipalities Planning Code.

I. Jurisdiction

The Pennsyliania Municipalities Planning Code, Act

of July 31, 1968, P.L. 805, 53 P.S. § 10101, et seq. (the

““Code’’), sets forth the procedures municipalities must

follow to enaet and to amend zoning ordinances. The

Code also sets forth the procedures a landowner must fol

low to challenge the validity of a zoning ordinanee. 53

PS. § 11004(1) provides:

(1) A landowner who, on substantive grounds, de-

sires to challenge the validity of an ordinance or map

or any provision thereof which prohibits or restricts

App. 26

the use or development of land in which he has an in-

terest shall submit the challenge either:

(a) To the zoning hearing board for a report there-

on under Section 910 or 9138.1; or

(b) To the governing body together with a request

for a curative amendment under seetion 6UY.L1.

o3 P.S. § 11004(1)(a) and (b)

The Code outlines the procedures to be followed to

insure that a proper hearing is held. The proceedings set

forth in the Code constituie tiie exclusive mode for secur-

ing review of any ordinance. 038 V.S. 911001. It is un-

disputed that the County did not follow the procedures

mandated by the Code to challenge the validity of the

township’s disputed ordinances. The general rule under

such circumstances is that administrative remedies must

be exhuasted before a court will hear an appeal challeng-

ing the validity of an ordinance. See Appeal of Merlino,

19 Pa. Commw. Ct. 148, 339 A.2d 642 (1975); Fretz v. Hill-

town Twp. Board of Supervisors, 22 Pa. Commw. Ct. 276

048 A.2d 488 (1975).

The courts of this Commonwealth, however, have es-

tablished three exceptions to the exhaustion doctrine:

first, exhaustion is not required where resort to the rem-

edy would be futile; Baier v. Com. Pa. Human Relations

Commission, 75 Pa. Commw. Ct. 296, 462 A.2d S81 (1983) ;

Heascley v. Operative Plasterers and Cement Finishers Ta-

ternational Association, 324 Pa. 257, 188 A. 206 (1936);

Blenko v. Schmeltz, 362 Pa. 365, 67 A.2d 99 (1949) ; seeond,

exhaustion is not required where the administrative rem-

edy is inadequate and incomplete; Femgold v. Bell of

Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1978); Gladwiane

App. 27

Colony, Inc. v. Township of Lower Merion, 409 Pa. 441,

187 A.2d 549 (1963) ; and third, exhaustion is not required

where the public would suffer irreparable harm during the

g; Duquesne

Light Co. v. Upper St. Clair Twyp., 377 Pa. 3238, 105 A.2d

287 (1954); Wood v. Goldvarg, 365 Pa. 92, 74 A.2d 100

(1950).

pendency of the administrative proceeding;

A. Futility

The County asserts that the Township Council's bias,

prejudice and pre-determination against the County’s plan

would render any attempt by the County to adhere to the

administrative remedies futile. We agree.

~The County presented extensive evidence at trial to

support the claim of bias. The record reveals the follow-

ing faets: in February, 1955, the Montgomery County

Solid Waste Management Committee was preparing for

a Request for Proposals for a 1,200 tons per day joint fa-

eility for Solid Waste Distriets 1 and 2.. Mr. Wurzbach,

Chairman of Plymouth Township Council, participated in

these diseussions and was in favor of such a faeility. (N.T.

102-103). The Township Solicitor formally confirmed

Mr. Wurzbach’s favorable position by letter dated Febru-

ary 13, 1985 to the County Solicitor stating, in part, that

Mr. Wurzbach ‘‘saw no problem with sizing the ineinerator

permitted to a tonnave sufficient to accommodate those

communities in Regions 1 and 2... .°? (N.T. 147, Exhibit

1-7). On April 15, 1985, the Township adopted an amend-

ment to its zoning ordinance which permitted the proposed

1.200 tens per day faeility to he constructed on County

owned Jand in the townshin. (Fxhibits D-10, D-9).

B,

App. 28

Throughout the course of the planning there was con-

stant local political pressure in opposition to the proposed

facility. (N.T. 285). After the passage of the April 15th

ordinance, the political activity taking place in the town-

ship was considerable and included the formation of a

citizens group in opposition to the facility. (N.T. 40-41).

The biggest and most volatile issue of the upeoming pri-

mary election for Plymouth Township Couneil was the

issue of the proposed resource recovery facility. (N.T.

286). On April 29, 1985, only two weeks after the 1,200

tons per day ordinance was enacted and one week before

the primary election, Council repealed the 1,200 tons per

day ordinance by a unanimous vote. (Exhibit D-11).

At the time the 1,200 tons per day ordinance was re-

pealed, a prepared statement was read by Councilman

Washeleski, drafted by himself and Robert Wurzbach,

which began with the sentence: ‘*Plymouth Township is

unanimously opposed to permitting any type of solid waste

disposal facility within our township.’’ (Exhibit D-11).

The statement was later signed by all members of the

Township Conneil except one and published as a letter to

the editor in the May 29, 1985 edition of Today’s Post.

(Exhibit D-12). Although the Township contended that

the 1,200 tons per day ordinance had heen repealed for

effective advertising, the ordinanee was never readver-

tised. (N.T. 277-278). Soon after the repeal, Mr. Wurz-

bach notified the County that the readontion of the 1,200

tons per day ordinance was ‘‘probablv a dead issne’’, (N.T.

130), and that Couneil ‘‘wouldn’t be able to approve a

twelve to fifteen hundred ton a day facility.’? (N.T. 279).

On Julv 8, 1985, Couneil passed Ordinanee No. 936,

which dramatically revised the 1,200 tons per day ordi-

App. 29

nanee. The design capacity of the proposed facility was

restricted to 250 tons per day and the height (exclusive

of stacks) was restricted to 40 feet. Ordinance No. 936

was adopted despite legal advice from the township soliei-

tor questioning the validity of its restrictions. (Exhibit

[)-13, D-15).

Since the passage of Ordinance No. 936 the Township

has repeatedly reconfirmed its opposition to the proposed

facility. On November 27, 1985, the Township Solicitor

wrote a letter to Paul B. Bartle, Chairman of the County

Commissioners, advising that ‘‘the construction of such a

facility will not be permitted unless and until a court rules

to the contrary.’’ (Exhibit P-8).. On December 9, 1985,

the Township Couneil unanimously directed its solicitor

to file these actions against the County in an effort te

prevent the construction of the resource recovery facility.

(N.T. 192). As recently as March 28, 1986, the Township

Solicitor wrote a letter to the Project Director at Dravo

Enerev Resources, Inc. warning that the construction of

this facility is ‘illegal’? and wall not be given a permit

‘unless the Court, in current litigation, rules that the

Township Zoning Ordinanee is illegal and/or invalid.’’

(Exhibit D-29).

These facts reveal that the Township Council was

staunehly opposed to a 1,200 tons per day resource recov-

ery facility as proposed by the County and was determinéd

to defeat the County’s plan. It is clear to the Court that

any attempt by the County to pursue the administrative

remedies preseribed hy the Municipalities Plannine Code

would have been an exereise in futility.

The issue of bias in a decision-making body was re-

cently addressed by the Pennsylvania Commonwealth

iii

App. 30

Court in McVay v. Zoning Hearing Board, — Pa. Commw.

Ct. —, 496 A.2d 1328 (1985), which involved an appeal by

a landowner from a zoning hearing board decision. In

McVay, a majority of the members of the zoning hearing

board, prior to being appointed to that board, had signed

and filed petitions in opposition to the adoption of a zon-

ing ordinance amendment to rezone property for a low cost

housing project. Upon appointment to the board three

months later these same individuals denied petitioner’s

request for a special exeeption to the zoning ordinance.

Petitioner then appealed to the Court of Common Pleas,

which vaeated the board decision as void for bias. The

Commonwealth Court agreed:

This Court has no hesitaney in agreeing with Judge

Wiser that the board decision was void in view of the

majority’s previous participation in a signed project.

Even without proof of harm, Pennsylvania’s Supreme

Court has concluded that a denial of due process is

present in sneh situations.

McVay v. Zoning Hearing Board, — Pa. Commw. Ct. at

—, 496 A.2d at 1330.

The McVay court quoted language from earlier Penn-

sylvania Supreme Court cases:

[A |ny tribunal permitted by law to try eases and con-

troversies must not only be unbiased but must avoid

even the appearance of bias.

McVay v. Zoning Hearing Board, — Pa. Commw. Ct. at

—, 496 A.2d at 1330, quoting Gardner +. Repasky, 434 Pa.

126, 252 A.2d 704 (1969). See also: Horn v. Township of

Hilltown, 461 Pa. 745, 337 A.2d 858 (1975).

App. ol

The principles articulated in WeVay apply with equal

force in the instant matter. Under the Municipalities

Planning Code, the administrative remedies available to

the County were to submit a challenge to either the zoning

hearing board for a report, or to the Township Council

requesting a curative amendment. 53 P.S. ¢ 11004(1) (a)

and (b). The evidence clearly established that the per-

vasive bias among members of Council against the County

plan would have rendered any attempt by the County to

receive a curative amendment futile. Furthermore, in

view of the intense political climate surrounding Council’s

repeal of the 1,200 tons per day ordinance and the enact-

ment of Ordinanee No. 936, it is diffieult to imagine that

the members of the zoning hearing board, who are appoint-

ed by eouneil to their positions!, could remain unbiased

and objective ander such cirenmstances. To require the

County to pursue administrative remedies before biased

tribunals merely to mect the requirements of the Muniei-

palities Planning Code would result in an exereise in futil-

itv. As the court artieulated in McVay, a determination

rendered under such cireumstanees would be void for bias.

B. Inadequate and Incomplete Relief

The seeond exception to the exhaustion doctrine is

that exhaustion is not required if the administrative rem-

edy is inadequate and incomplete. Feingold v. Bell of

Pennsylvania, supra; Gladiwyne Colony, Ine, v. Township

of Lower Merion, supra; Duquesne Light Co. v. Upper St.

Clair Twp., supra.

1. 53 P.S. § 10903.

App. 32

In Feingold v. Bell of Pennsylvania, supra, a private

litigant’s complaint seeking legal and equitable relief and

damages from the telephone company was dismissed for

the plaintiff's failure to exhaust administrative remedies

under the Publie Utility Law? before seeking a judicial

remedy. The Pennsylvania Supreme Court reversed and va-

cated the lower court’s decree. Initially, the court noted

that “[a]s with all legal rules, the exhaustion of adminis-

trative remedies rule is neither inflexible nor absolutes...”

Id., 477 Pa. at 6, 383 A.2d at 793, and that “[t]he mere exis-

tence of a remedy does not dispose of the question of its

adequacy; the administrative remedy must be ‘adequate

and complete’.’’? Id.,477 Pa. at 7, 883 A.2d at 794, quoting

Philadelphia Life Insurance Co. v. Commonwealth, 410 Pa.

o71, 190 A.2d 111 (1968). The Court then reviewed the

statute and found that, although the PUC possessed for-

midable statutory enforcement and remedial powers, the

PUC did not have the power to grant the relief sought by

Petitioner; that is, the PUC could not award damages to

a private litigant for breach of contract by a public utility.

Thus, the administrative remedy was not adequate and

complete since the petitioner could not be made whole by

the PUC. The Court explained:

The rule requiring exhaustion of administrative rem-

edies is not intended to set up a procedural obstacle

to recovery; the rule shonld be applied only where

the available administrative remedies are adequate

with respect to the alleged injury sustained and_ the

relief requested. (footnote and citation omitted).

Id., 477 Pa. at 10, 383 A.2d at 795-796.

2. Act of May 28, 1937, P.L. 1053, 66 P.S. § 1101 et seq.

App. 33

The same conclusion was reached in an earlier Penn-

sylvania Supreme Court decision. In Gladwyne Colony,

Inc. v. Township of Lower Merion, supra, plaintiffs

brought an action in equity to invalidate a rezoning ordi-

nanee and a separate agreement whereby the township

approved the construction of an apartment complex in

exchange for the dedication of certain private land for use

as a public park. The Supreme Court found no wrong-

doing on the part of the township and therefore affirmed

the dismissal of the complaint; however, the court ex-

pressly over-ruled the lower court’s finding that the plain-

tiff could not test the validity of the ordinance in an

equity action. As the court stated:

We differ with the lower court’s views in one resp ct.

There is no merit in the defendant’s contention that

the plaintiffs could not test the validity of the ordi-

nance in this equity action. The remedy at law would

not have been an adequate one here, since the plain-

tiff’s were attacking not only the propriety of the

ordinance but the agreement and the actions taken

under it as well. The ordinance was being questioned

as part of the entire transaction.

Id., 409 Pa. at 447, 187 A.2d at 552.

The holdings of Feingold and Gladwyne apply with

equal force to the instant matter. The relief the County

seeks is the invalidation of Ordinances Nos. 934, 936 and

937 insofar as the ordinances regulate areas preempted

by the Pennsylvania Solid Waste Management Act.

Neither the Township Council nor the zoning hearing

board are granted {le power under the Code to make

such a determination. Under the Code, the function of

either the Council or the board in a zoning appeal is to

App. 34

act as fact-finder. 53 P.S. § 10908(9). An appeal to

Council could produce, at best, a curative amendment.

53 P.S. § 11004(1)(b); 58 P.S. § 10609.1. On appeal, the

zoning hearing board will issue findings of fact and a

report. 53 P.S. §11004(1)(a); 53 P.S. § 10910. The

power to declare an ordinance invalid, however, is ex-

pressly granted to the courts. 53 P.S. § 11011(1).

The administrative remedies under the Municipal-

ities Planning Code do not provide the County with ade-

quate and complete relief, as neither the Council nor the

board is granted the power to determine, as a matter of

law, that an ordinance is invalid by preemption. HExhaus-

tion of administrative remedies, therefore, is not required.

C. Trreparable Harm

The third exception to the exhaustion doctrine is that

exhaustion will not be required where the pursuit of the

administrative remedy will work an irreparable harm on

the party seeking to challenge the zoning ordinance.

In Duquesne Light Co. v. Upper St. Clair Twp., supra,

a public utility corporation brought suit in equity to en-

join the township of Upper St. Clair from enforcing a

zoning ordinance against its proposed construction of a

new transmission line. The utility contended that the

local zoning law was preempted by state statute (the

Publie Utility Code). The township argned that the court

could not exercise jurisdiction beeause the zoning statute

under which its ordinanee was adopted provided the ex-

elusive remedy for relief by way of a hearing before the

Board of Adjustment: Duquesne, however, had not pur-

sued this remedy. Finding that both the public and the

App. 35

utility would suffer irreparable harm during the pen-

dency of an administrative proceeding, the Supreme Court

of Pennsylvania held that exhaustion was not required.

The following language from the court’s opinion is in-

structive:

The evidence was undenied that unless construction

of the transmission line were resumed by March 15,

1954. Duquesne would be unable to complete it by

September 1, 1954, the day on which the third gene-

rator now being built at Elrama is expected to be put

into service. There was likewise uncontradicted evi-

dence that if the transmission line is not completed by

September 1, 1954, Duqnesne will be foreed under

various conditions to use less efficient equipment or

to curtail service to its customers, at a cost or loss

to it of from $150 per day to $350 per hour. Under

the administrative procedure provided by Section

3107 of the zoning statute of June 24, 1981, P.L. 1206,

as amended, 53 DP.S. § 19092-3107, the Board of Ad-

justment fixes a reasonable time for the hearing of

an appeal, must give public notice thereof as well as

due notice to the parties in interest and decide the

same within a reasonable time, and any party ag-

grieved by the Board’s decision has 30 days in which

to appeal to the county court. Patently such time-

consuming procedure would cause Duquesne irrep-

arable financial harm, without taking into consider-

ation the interests of the public.

Duquesne Light Co. v. Upper St. Clair Twp., 377 Pa. at

309-340, 105 A.2d at 294-295.

As in Duquesne, the County and its citizens will be

| , :

faced with irreparable harm if the County is foreed to

pursue time-consuming administrative remedies which de-

lay the construction of the proposed facility. Mr. Richard

N. Koeh, an expert in the field of municipal solid waste

App. 36

planning, testified to the existence and gravity of the

solid waste disposal crisis which confronts Pennsylvania

as a whole and the County in particular. The court found

this testimony to be credible.

Mr. Koch testified that in the past, nearly all of

the County’s municipal waste was disposed of by land-

filling. (N.T. 41, 42). Presently, however, the number of

landfill facilities has decreased and, more importantly,

the availability of those landfills for disposal practices

has been severely limited. (N.T. 45-46). With the clos-

ing of the County landfill on December 31, 1985, (N.T.

43, 112-113), only one landfill permitted in Montgomery

County is available to take the County’s waste; however,

its availability is limited by the terms of the contract and

it will remain available for only two or three years more.

(N.T. 47). None of the landfills that exist outside the

County could take all of the County’s trash (N.T. 47);

nor would they be available to the County after two or

three vears. (N.T. 48-49).

Presently, the amount of refuse being generated in

eastern Pennsylvania is outstripping the disposal ca-

pacity. (N.T. 28). Solid Waste Districts 1 and 2, the

areas to be serviced by the proposed facility, are the most

densely populated areas of the County, generating 2/3 of

all the County’s waste. (N.T. 51). In an effort to find

adequate disposal, refuse is being hauled further and

further away from the areas in which it was generated.

(N.T. 28). Mr. Koch testified that hauling trash over

long distances is not good solid waste management prac-

tice because: 1) it is accomplished pursuant to short-term

contracts; 2) it reduces available disposal space for those

living in the areas dependent on that particular landfill

App. 37

for waste disposal; and 3) it is not cost-effective. (N.T.

49-50). Despite this ebvious need to develop a long-term

solution to the County’s waste disposal needs, no new

facilities are being developed in eastern Pennsylvania

except the resouree recovery facility which is the subject

of this litigation. (N.T. 28). Clearly, a solid waste man-

agement crisis does in fact exist in eastern Pennsylvania.?

(N.T. 28).

Unless construction of the proposed resource recovery

facility is promptly commenced, the County faces an irrep-

arable harm which is double-edged. The construction of

the facility is projected to take thirty-three months. (N.T.

49, Stipulation Paragraph 6). This projection is predi-

cated upon starting construction in the fall of 1986. (N.T.

49). Based on these projections, the facility would be

available Tor disposal operations in mid-1989. As Mr.

Koch testified, however, landfill areas currently available

to the County will be filled to capacity within two to three

years. Therefore, unless the County commences construc-

tion on the facility within the projected starting dead-

lines, the citizens of Montgomery County living tn Dis-

tricts 1 and 2 will be without a viable long-term option for

disposing of solid waste just as landfills in the area reach

capacity levels. Considering that 2/3 of the County’s

waste is generated in Districts 1 and 2, the consequences

of this result could prove disastrous,

3. The township has acknowledged the seriousness of the

problem. In a letter dated November 2, 1984 to Paul B.

Bartle, Chairman of the Montgomery County Commission-

ers, Robert Wurzbach, writing in his official capacity as

Chairman of Plymouth Township Council, wrote that Coun-

cil recognized the “serious solid waste disposal problem in

the region.” (Exhibit D-6).

App. 38

Furthermore, failure to commence the proposed fa-

eility promptiy will result.in a tremendous financial loss

to the citizens of Montgomery County. To finance the

cost of construction of the resource recovery facility, the

County Industrial Development Authority issued tax-

exempt bonds in the face amount of $107,000,000. (N.T.

9, 190, Exhibit D-25). It is undisputed that if the project

is not commenced in a prompt manner, it stands to lose

tax-exempt financing and the taxpayers of Montgomery

County will be subjected to a forfeiture of up to $2,500,000.

(N.T. 196).

The evidence clearly establishes that under the cir-

cumstances of this case time is of the essence in resolving

the issues raised in this action. The appeal process under

the Municipalities Planning Code, however, is time-con-

suming. After the ordinance takes effect, a landowner

may request a hearing before either the zoning hearing

board or Council. 53 P.S. § 11004(2)(a) and (b). After

the request is filed, the hearing must be held within sixty

(60) davs. 53 P.S. § 11004(2)(f). Thereafter, a decision

must be entered within forty-five (45) days after the

hearing is held. 453 P.S. § 10908(9). The circumstances

of this case are similar in effect to those in Duquesne.

The pursuit of such a time-consuming remedy would result

in irreparable harm to the County and its citizens. There-

fore, the exhaustion of administrative remedies is not

required, and jurisdiction may be exercised by the court.

Having thus determined that this court has the juris-

diction to hear this matter, we now turn to the issue of pre-

emption.

EE |

App. 39

II. Preemption

The County contends that the Solid Waste Manage-

ment Act [the ‘*Act’’?] prcempts Plymouth Township from

enacting ordinances which regulate the operation of solid

waste disposal facilities. Upon review of the statute and

the relevant case law, if is clear to this court that the

State has preempted this field; therefore, Plymouth Town-

ship’s Ordinances Nos. 934, 986 and 987 are invalid inas-

much as they regulate the operation of the proposed re-

souree recovery facility.

The Pennsylvania legislature has determined that im-

proper and inadequate solid waste practices create publie

health hazards, enwironmental pollution, and economic

loss, and cause irreparable harm to the public health,

}

safety and welfare. 385 P.S. § 6018.102. The purpose of

the Act is, inter alia, to provide the mechanism for the

establishment, maintenance, and implementation of com-

prehensive solid waste management planning on both the

State and loeal levels. 385 P.S. § 6018.102.

The powers and duties of the participating govern-

mental entities are clearly defined by the Act. The Depart-

ment of Environmental Resources [“DER”] is granted

the power to administer the solid waste management pro-

gram and to develop a statewide solid waste management

plan emphasizing area-wide planning. 385 DP.S. < 6018.104

(1) and (3). DEE is specifically empowered to regulate

the storage, collection, transportation, processing, treat-

ment and disposal of solid waste. 35 P.S. § 6018.104(6).

DER is further empowered to issue permits and licenses,

to specify the terms and conditions thereof, and to require

the payment of fees for the processing of any permit or

App. 40

license application. 35 P.S. § 6918.104(7) and (8). It is

DER who is authorized to approve or disapprove plans

for municipel waste management systems. 59 P.S.

§G018.201(g).

The powers and duties of municipalities are also

clearly defined under the Act. Each municipality must

submit to DER an officially adopted plan for a municipal

waste management system or must request the County in

which the municipality is located to perform this function

on its behalf. 35 P.S. § 6618.201(b) Each municipality

is also responsible for the collection, transportation, pree-

essing, and disposal of municipal waste which is generated

or present within its boundaries and for implementing its

approved plan. 35 P.S. 6 6018.202(a). In carrying out

its responsibilities, municipalities are given regulatory

powers in two limited and specifically defined instances:

«any such municipality may adopt ordinances, regu-

latious and standards for the storage? and collection’ of

municipal waste .. 277) 35 PLS. $ 6018.202(1) (emphasis

added). Thus, while DER is granted broad powers to

promote area-wide planning and to regniate all areas of

solid waste management, municipalities are responsible

only for implementing their own plan and, in furtherance

-

—

4. “Storage” is defined as the “containment of any waste on

a temporary basis in such a manner as not to constitute dis-

posal of such waste.” 35 P.S. § 6018.104. “Disposal” is de-

fined as the “incineration, deposition, injection, dumping,

spilling, leaking or placing’ solid waste into the environ-

ment. 35 P.S. § 6018.104.

5. “Collection” is defined by Webster's Third New Interna-

tional Dictionary (1976 edition) as ‘the act of collecting’

and ‘‘collect” as “gather’’.

App. 41

of this responsibility, may regulate only in the areas of

storage and collection.

Pursant to the regulatory powers granted under the

Act, DER has promulgated establishing standards for

certain aspects ef solid waste management. All solid

waste disposal facilities must comply with environmental,

operational and engineering standards established by

DER. 25 Pa. Code § 75.21. DER has established general

standards for the storage of solid waste, 25 Pa. Code

§ 79.28; standards for the collection and transportation of

solid waste, 25 Pa.Code § 75.29; and standards for solid

waste incinerator facilities, 25 Pa.Code § 75.30. Thus, a re-

view of the Act and the pertinent regulations promulgated

thereunder makes clear that the legislature intended to

empower DER with broad, regulatory powers to over-see

the implementation and maintenance of a comprehensive,

area-wide solid waste management program operating

within the Commonwealth; therefore, local municipalities

are preempted from regulatine in this field.

This conclusion is well-supported by case law. In

Crown Wrecking Co., Inc. v. Township of Ross, (C.P.

Allegheny Co. 1984), affirmed — Pa.Commw.Ct. —, 500

A.2d 1298 (1985), the operator of a solid waste landfill

filed a Complaint in Equity seeking an Order declaring

invalid the township’s ordinance which regulated the oper-

ation of solid waste landfills and the transportation of

waste. Crown contended that the regulation of solid

Waste landfills was preempted by the State through the

Department of Environmental Resources under the au-

thority of the Solid Waste Management Act: therefore,

the ordinance was invalid per se because it regulated an

area specifically preempted by the Commonwealth.

App. 42

In an opinion characterized by the Commonwealth

Court as “able” and “well-reasoned”, the Honorable Emil

E. Narick of the Court of Common Pleas of Allegheny

County held that “the State had preempted the field regu-

lating the conduct and operation of landfills throughout

the Commonwealth .. .”. Lowe: court slip opinion at

page 5. As the Court stated:

The Act and the DER regulations manifest the legis-

lative intention to exclusively occupy the landfill op-

erations. ... Under the authority of the Act of Penn-

sylvania DER is given broad power to regulate waste

disposal and landfill systems. It is the legislative

judgment that unified statewide regulations of land-

fills is the best method for protecting the soundness

and integrity of landfill systems. The Act in our

view unequivocally provides that municipalities are

excluded from the regulation of landfills direetly or

indireetly by implication.

Id., at 10-11.

The Court therefore concluded that because the regu-

lation of landfills was preempted by the State Aet and

the regulations pursuant thereto, and because the ordi-

nance impermissibly impinged upon this area, the town-

ship ordinance was invalid as applied to Crown. /d., at

13. The Commonwealth Court affirmed based on the

opinion of the court below. Township of Ross v. Crown

Wrecking Co., 500 A.2d at 1298.

The same conclusion was reached in Mimicipality of

Monroeville v. Chambers Development Corporation, 88

Pa.Commy. Ct. 608, 491 A.2d S07 (1985). In Wonroerille,

the operator of a landfill sought to enjoin the enforee-

ment of an ordinance prohibiting landfill operations dur

App. 43

ing certain hours and on certain days. The lower court

permanently enjoined enforcement of the ordinance, and

the municipality appealed. After reviewing the Act and

the explicit and limited powers granted to municipalities

under the Act, the Commonwealth Court affirmed. The

Court found that the Act specifically permitted munici-

palities to regulate only in the areas of storage and col-

lection. The ordinance, however, did not apply to either

storage or collection but rather apphed to the operation

of the landfill and the “disposal” of solid waste. The

court concluded:

riven the legislature’s specific, detailed provision that

municipalities may regulate the “storage” and “eol-

lection” of solid waste, the exclusion of “disposal”

from the definition of “storage”, and the obvious omis-

sion of any other permitted areas, we conclude that

the legislature did not intend municipalities to have

the power to regulate any aspects of the operation of

a sanitary landfill.

Id., 88 Pa.Commw.Ct. at 609, 491 A.2d at 311.

These eases are virtually indistinguishable from the

ease at bar.6 The ordinances enacted by the Township

6. Plymouth attempts to distinguish Crown Wrecking Co. and

Monroeville by suggesting that they apply only to sanitary

landfills and not to resource recovery facilities such as the

one here proposed by the County. This argument ignores

the comprehensive intent and language of the Act. The

definition of ‘‘disposal’’ under the Act incorporates bot

incineration and landfilling. 35 P.S. § 6018.103. The applica-

tion and interpretation of the Act does not vary depending

on which method of waste disposal in utilized. DER is

empowered to regulate the “processing” of solid waste, the

definition of which specifically includes resource recovery

(Continued on following page)

App. 44

have nothing to do with the storage and collection of solid

waste; rather, the ordinances are clear attempts by the

Township to regulate the disposal, processing and trans-

portation of solid waste—areas specifically preempted by

the State.

Ordinance No. 936 contains height and design capacity

restrictions which regulate the operation of the laclity

and directly affect the amount of waste to be processed.

The legislature has empowered DER to regulate in this

area, 35 P.S. § 6018.104(6). Moreover, the regulations spe-

cifically provide that it is DER, and not the munieipali-

ties, which sets the standards for the planning, design sind

operation of any solid waste processing or disposal fa-

eility. 25 Pa.Code §75.21(e). Thus, the Township is

clearly preempted from enacting Ordinance No. 9386 which

regulates the operation of the proposed facility.

Ordinance No, 934 regulates in areas already revu-

lated by DER. The ordinance provides, inter alia, that

an operator of a solid waste facility must obtain permits

(Continued from previous page)

facilities. 35 P.S. §6018.103. The legislature also specifi-

cally declared that one of the purposes of the Act was to

“encourage the development of resource recovery .

35 P.S. § 6018.102(2).

Furthermore, the standards promulgated by DER pursuant

to the Act apply across the board to any solid waste process-

ing or disposal facility, including both resource recovery

systems and sanitary landfills. 25 Pa. Code §75.21(e). A

quick perusal of the regulations reveals continued refer-

ences to solid waste processing or disposal facilities, and an

entire section is devoted to standards for solid waste in-

cinerator facilities. 25 Pa. Code § 75.30. Thus, the Act

— equally to both landfills and resource recovery fa-

cilities.

App. 45

from the Township as a condition precedent to the con-

struction or operation of any solid waste processing and

disposal facility, pay fees of up to $100,000 to accompany

any permit application, and pay a user fee of $.5C per ton

for waste processed or disposed of within the Township.

In addition, Ordinance No. 936 requires that applicants

seeking a permit must submit to Council an environmental

impact study and a fiscal impact study.

These requirements set forth by the Township con-

flict with DER’s authority to regulate under the Act and

duplicate DER’s regulations uniformly imposed throuch-

out the Commonwealth. DER is granted the authority to

issue permits and to specify the terms and condition:

thereof, 35 P.S. ¢ 6018.104(7); to require the payments of

fees for the processing of any permit application, 35 P.S.

, 6018.104(8); to approve or disapprove submitted plans,

35 PLS. §6018.201(¢); and to approve or disapprove a

revised plan, 35 P.S. § 6018.201(h). Pursuant thereto.

DER has promulgated extensive regulations concerning

permits and the permit application process. 25 Pa.Code

§ 79.21, § 74.22. Thus the Township may not ignore DER’

authority to oversee the permit application process and to

issue permits; nor may the Township substitute its judge-

ment for that of DER in determining whether a permit

should be granted or whether a plan should be approved.

Ordinance No. 934 further regulates the transporta-

tion of solid waste—an area also preempted by DER. 35

PLS. § 6018.104(b). DER has promulgated regulations re-

varding transportation. 25 Pa.Code § 75.21(1) and § 75.29

(i) and (j). The ordinance further regulates vector con-

trol procedures and emergeney procedures, subjects also

regulated by DER. 25 Pa.Code § 75.21(p): 25 Pa.Code

App. 46

§ 75.30(b). In short, the Court is satisfied that the Act

and regulations address all matters sought to be regu-

lated by the ordinances.

In addition to the restrictions imposed by Ordinances

Nos. 934 and 936, Ordinance No. 937 restricts the land

allowed to be used as a resource recovery district. Initi-

ally, the Township created a resource recovery district

of approximately 121.4 aeres which ineluded approximately

70 acres of County owned land. (N.T. 151-152, Exhibit

D-10). Under Ordinance No. 937, the County’s land in-

cluded in the new resource recovery district was limited

to approximately 10 aeres, and the County’s two quarries

were exeluded. (N.T. 1738).

Ordinances Nos. 954, 936 and 937 were all enacted on

July 8, 1985 and are admittedly interrelated. (Deposition

of Joan Grohoski, April 238, 1986 at 79; N.T. 211). The

circumstances surrounding the passage of the ordinances

and the limitations which they impose indicates to the

Court that Ordinances Nos. 934, 936 and 937 were designed

and enacted by Council to exclude the proposed facility

from the Township and to restrict and regulate the opera-

tions of any facility that will eventually be constructed.

Joan Grohoski, the current Chairperson of Plymouth

Township Council, explained that the limitations and re-

strictions in the ordinances were attempts by Couneil to

scale down the size of the facility and limit its tonnage

capacity. (Deposition of Joan Grohoski, April 18, 1986

at 94; N.T. 205-206). The ordinances further sought to

insure that Council had the “last say” and would be able

to retain control over any facility built in the Township's

newly created Resouree Recovery District. (Grohoski,

App. 47

April 18, 1986 at 98-99; N.T. 206-207). When asked if

she was trying to defeat the Montgomery County resource

recovery facility, Mrs. Grohoski candidly admitted that

she was “trying to stop it if it were possible”. (Grohoski,

April 23, 1986 at 34; N.T. 209).

This type of municipal regulation is precisely the kind

of local interference that the legislature soucht to avoid.

As the Court found in Crown Wrecking Co., Inc. v. Town-

ship of Ross, supra., the Act manifests the legislative in-

tent to occupy the field of solid waste management, there-

by excluding municipalities from regulating in this field.

The best method for protecting the soundness and intes-

rity of the solid waste management system is through uni-

fied, state-wide regulations. /d., at 10-11. Quoting from

Duqusne Light Co. v. Upper St. Clair, supra., the Crown

Court stated:

Local authorities not only are ill-equipped to com-

prehend the needs of the public beyond their jurisdie-

tion, but, and equally important, those authorities, if

they had the power to regulate, necessarily would ex-

ercise that power with an eye toward the local situa-

tion and not with the best interests of the public at

large as the point of reference.

Crown Wrecking Co., Inc. v. Township of Ross, supra, at

11; quoting Duquesne Light Co. v. Upper St. Clair, 377 Pa.

at 336, 105 A.2d at 293.

Such is the case in the instant matter. By enacting

Ordinances Nos. 934, 936 and 937 Council was trying to do

what it believed to be in the best interests of Plymouth

Township. However, the effect of the ordinances frus-

trates the intent of the Act and dismantles any comprehen-

sive and regional solid waste management planning. As

ll

App. 48

of January 20, 1986, seventeen of the twenty-four munici-

palitics in Solid Waste Districts 1 and 2 have executed a

contract with the County committing their municipal waste

streams to the proposed resource recovery facility. (N.T.

7-8, 188-189). These municipalities are now left without a

plan for the management of their sclid waste. The intent

of the Act is clearly to avoid such a result. The Court

must therefore conclude that Ordinances Nos. 934, 936 and

937 are invalid as applied to the proposed resource recov-

ery facility due to preemption by the Solid Waste Manage-

ment Act.

The County further seeks the invalidation of other al-

ready existing Township zoning ordinances as applied to

the proposed resource recovery facility. Specifically, the

County refers to Section 10 of the Township Code which

requires prior approval by the Township Air Pollution

Contro! Board before the construction of the facility may

be commenced and also imposes air pollution regulations

upon the facility; Section 25 of the Township Code, which

requires a written permit from the superintendent for the

East Norriton-Plymouth Joint Sewer Authority before

the facility may be connected to the Authority’s sewer

line; Section 5 of the Township Code, which requires that

a building permit be obtained before the commencement ol

any construction in the Township; and Ordinance No, 837,

which requires Counci!’s approval before land develop-

ment may occur and further requires an applicant to file

with Council numerous detailed plans regarding the pro-

posed development.

Regarding the air and water regulations in the Town-

ship Code, we note that plans submitted to DER for review

App. 49

must consider the effect a facility will have on the environ-

ment including air, water, land and other natural re-

sourees. 35 P.S. § 6018.201(e)(1) and (3). A permit moy

be denied or revoked if a plan fails to comply with

State pollution control statutes. 35 P.S. § 6018.505(e).

As with the fiscal and environmental impact studies re-

quired by Ordinance No. 936, the Township Code imposes

duplicate procedures on permit applicants already im-

posed by DER. A quick perusal of the multi-volume docu-

ments contained in the County’s permit application (Ex-

hibits D-30, D-31) reveals extensive information as to eco-

nomic impact, environmental effects, design technology,

plans and specifications all required by DER. Should a

municipality object to a particular aspect of a permit ap-

plication, the appropriate remedy is for the municipality

to recommend to DER the conditions upon, revisions to,

or disapproval of the permit. 35 P.S. § 6018.504.

Inasmuch as the Act preempts the regulation of the

proposed facility, and the application of these portions of

the Township Code could potentially interfere with the

State’s preemption in this field, those portions of the

Code and ordinances are held to be unenforceable as ap-

plied to the County’s proposed plan. This would be so

even if no actual interference exists. The application of

the preemption doctrine does not require actual conflict

between State and municipal laws; rather, ‘* [i]t is the po-

tential rather than actual conflict between state and muni-

cipal laws’’ that provides the justification for the legisla-

tively mandated statewide regulation of solid waste pro-

cessing or disposal facilities. Crown Wrecking Co., Inc.

v. Township of Ross, supra, at 13. Thus, with regard to

the County ’s proposed resource recovery facility, Sections

App. 50

5,10 and 23 of the ‘l'ownship Code and Ordinance No. 837,

are also preempted by the Act and are not enforceable.’

A review of the Solid Waste Management Act, the

regulations promulgated thereunder by DER and the rele-

vant case law requires this court to conclude that the State

has preempted the field of solid waste processing and dis-

posal. Because the Township’s ordinances infringe upon

the State’s exclusive authority to regulate in this area, we

7. The cases cited by the Township supporting enforceability

are not helpful. In Greene Township v. Kuhl, 32 Pa.

Commw. Ct. 592, 379 A.2d 1383 (1977), the Common-

wealth-€ourt held that the builders of a sanitary landiill

were required to obtain municipal building permits in addi-

tion to the permits issued by DER because the Solid Waste

Management Act in effect at that time (the Act of July 31

1968, P.L. 788, as amended, 35 P.S. § 6001 et seg.), did not

contain a clear legislative intent to preempt local zoning

regulations. The new Act, however, does express the legis-

lative intent for state preemption, and the courts have so

found. Crown Wrecking Co., Inc. v. Township of Ross,

supra; Municipality of Monroeville v. Chambers Develop-

ment Corp., supra.

The Township further relies on Township of Middletown v.

County of Delaware, 86 Pa. Commw. Ct. 501, 485 A.2d 535

(1984) where the Commonwealth Court analyzed the Dela-

ware County Home Rule Charter and the Municipalities

Planning Code and found that the zoning regulations of a

home rule municipality were paramount and required the

County to comply with all zoning and building restrictions.

This case, however, has recently been reversed by the

Pennsylvania Supreme Court in County of Delaware v.

Township of Middletown, — Pa. --, — A.2d —, (No. 73

E.D. 1985) June 27, 1986, Zappala, J., which found that stat-

utory analysis was unnecessary when the Home Rule Char-

ter specifically provided that the Township could not regu-

late so as to infringe the operation of another political sub-

division. The Township was therefore bound by its Charter

from interfering with the County’s proposed construction

of a resource recovery facility on County owned land lo-

cated within the Township.

App. 51

hold that Ordinances Nos. 837, 934, 936 and 937 and Sec-

tions 5, 10 and 23 of the Township Code are invalid and

unenforceable as applied to the County.

CONCLUSIONS OF LAW

The court adopts and incorporates hereip by refer-

ence all of the County’s proposed conclusions of law (at-

tached and incorporated herein as Exhibit ste, has

Reserved Rulings on Evidence

1. Objection sustained as to Mr. Richard Koch’s testi-

mony regarding the **not in my backyard’ approach.

2. D-56; objection over-ruled.

3. D-21; objection over-ruled.

4. [)-22: objection over-ruled.

0. D-32; objection over-ruled.

6. D-23; objection over-ruled.

(. Deposition of Mr. Robert Wurzbach; objection over-

ruled.

8%. D-7: objection over-ruled.

9% P-10; objection over-ruled.

10. P-15; objection sustained.

App. 52

EXHIBIT A

TOWNSHIP OF PLYMOUTH ) COURT OF

) COMMON PLEAS ~

v. ) MONTGOMERY

) COUNTY

COUNTY OF MONTGOMERY ) NO. 80-19292

TOWNSHIP OF PLYMOUTH ) COURT OF

) COMMON PLEAS

v. ) MONTGOMERY

) COUNTY

COUNTY OF MONTGOMERY ) NO. 85-19298

PROPOSED FINDINGS OF FACT

AND CONCLUSIONS OF LAW FOR PHASE f TRIAL

I PROPOSED FINDINGS OF FACT

FOR PHASE | TRIAL

1. The County of Montgomery (“County”) is a coun-

ty of the Second Class A of the Commonwealth of Pennsyl-

vania, with an address at the Courthouse, Norristown,

Pennsylvania 19404. | N.T. 4}

2. Plymouth Township (‘‘the Township’’) is a for-

mer first class township which has adopted a Home Rule

Charter, situated within the boundaries of the County,

with an address of Plymouth Township Building, 700 Bel-

voir Road, Plymouth Township, Pennsylvania 19401.

[N.T. 4]

3. The County and the Township executed a Stipula-

tion which limited the issues to be tried during the May 7-9)

consolidated trial to (a) jurisdiction and (b) preemption.

The County reserved its right to litigate all other issucs

during a continuation of the trial, if necessary. [N.T. 12

————EEEE

App. 53

A. Trash Crisis

4. There is a municipal waste disposal crisis in

southeastern Pennsylvania which becomes more critical

every day as existing landfills reach their capacity. [N.T.

25, 28, 29, 30, 41, 43, 44-46, 51, 118, 141-142, 153, 247-200,

292, Exhibit D-2 (xi. xvi, 4-11—4-19, 5-10—-d-17), Exhibit

D-4, Exhibit D-6, Exhibit D-8, Exhibit D-9, Exhibit D-38]

5. The amount of refuse that is being generated in

southeastern Pennsylvania is outstripping the disposal

capacity. [|N.T. 28]

6. Historicaily, nearly all of the Ceunty municipal!

waste has been disposed of by landfilling. [N.T. 41, 42]

7. Most of the waste generated by the municipalities

in the eastern part of the County was disposed of at the

Montgomery County landfill until it closed on December

31, 1985. [N.T. 41, 43, 112-113]

8%. There are no new refuse disposal facilities being

developed in eastern Pennsylvania other than the Mont-

vomery County resource recovery facility. [N.T. 28]

9. There are no facilities in the Delaware Valley that

can meet the long term municipal waste disposal demands

of Montgomery County. | NT. 28]

10. All existing publie and private landfills presently

permitted within the borders of the County will be filled to

capacity within the next twe to three years. [N.T. 47]

11. All landfills within the Delaware Valley which

are accessible for any of the municipal waste generated

within the County will be filled te capacity within the next

three to four years. | N.T. 41-47, 48, 49]

App. 54

12. There is no landfill in the Delaware Valley which

is available to take all of the County’s trash for the next

three to four years. [N.T. 47]

13. It has become necessary to take refuse further

and further away from the areas in which it is generated.

[N.T. 28]

14. At least some of the ‘Pownship’s trash is being

taken as far away as the Harrisburg incinerator, [N.T.

84, 212]

15. It is neither eost effective nor responsible solid

waste management practice to export trash to distant loca-

tions. [| N.'T. 49-50, 97-98 |

16. A lone term solution to the trash erisis is neecs-

sary. [N.T. 82, 97-98, 99, Exhibit D-1, Exhibit D-2, Exhibit

D-4]

17. In 1980, in recognition that inadequate solid

waste practices ‘‘cause irreparable harm to the puble

health, safety and welfare,’’ the Legislature passed the

Solid Waste Management Act, stressing the need for area-

wide planning to solve the solid waste crisis and encourag:-

ing the development of resource recovery as a means oO}

managing solid waste, conserving resources, and supply-

ing energy. [Exhibit P-6]

18. The Commonwealth of Pennsylvania, Depart-

ment of Environmental Resources (**D.1.R.7*) has identi-

fied a waste disposal problem within the County. [N.T.

113-114, Exhibic D-4]

19. ft is inefficient and uneconomical for townships

and boroughs in the County to attempt to resolve the

App. 55

municipal waste management crisis on an individual basis.

[N.T. 79, 133, 196, Exhibit D-2 (xi, xii, 5-17, 5-18, 5-22—5-

24, 7-1—7-4) ]

20. Because of heated political pressure whenever a

waste disposal facility is proposed in any particular com

munity, local township and borough elected officials are

caine unable to achieve the goal of area-wide plannine.

LNT. 20, a0, oi, 71, 2, 209, 286, Exhibit D-1]

21. Because of the typicality of local reaction to pro-

tee disposal facilities, the phrase ‘*not-in-my-backyard”’

(°N.IM.B.Y.”’) has been coined and used extensively

sega the literaure. | N.T. 30-31, Exhibit D-1]

22. Resource recovery is the most feasible solution to

solving the ones waste problem, [N.T. 231-233, 247-

Exhibit D-2 (4-37, 7-61, 7-67-—7-72, 8-1—8-4), Exhibit P-G|

23. The Chairman of the Township Council admitted

during the April 15, 1985 Council meeting:

Sanitary landfills are not what we want today. The

technology is not the right techonolgy. The mass-

burn | facility today appears to be the right facility to

handle our solid waste problem, all right.

We, a year and a half ago, were opposed to the C ounty

building a mass-burn facility in our Township. We

advocated a compacting station where you bring the

trash in, squeeze it into big, huge bricks and then take

it out to the landfills. There are no more landfills in

the State of Pennsylvania. They are closing them.

There were 1100 landfills about five years ago. It’s

down now to about 285, and it is projected that there

Will be only about 20 in about four vears from now.

There wil! not be any landfills

App. 56

Now, there are a lot of different techonologies. There

is the mass-burn facility. There is the facility that

you heard about in Philadelphia ealled refuse derived

fuel where they take the fuel, grind it up and make it

into pellets and burn the pellets. There are all kinds

of technology.

There is technology where... vou... pour the trash

into molten lead and make charcoal out of it. It might

be the best thing since sliced bread, but it doesn’t work

today.

So today the best thing that is out there is this mass-

burn technology and it has been working. It is work-

ing in about 55 counties, in Europe, and it is working

in this country as well.’’

[N.T. 231-233]

24. It will take thirty-three months from the issuance

of a notice to proceed before the proposed County resource

facility could be operational. [N.T. 49, 155, 199, 262, Ex-

hibit D-9]

25. <A long delay in the commencement of construc-

tion will result in the loss of the critical tax-exempt f'-

nancing, the County taxpayer will be subjected to a for-

feiture of at least $2,500,000, and the public health, safety

and welfare will be irreparably harmed. [ Mxhibit P-6; Ex-

hibit D-2 (10-2, 10-4), Exhibit D-25]

26. In order to solve the County municipal waste

management crisis in accordance with the objectives ex-

pressed by the Legislature and to avoid irreparable harm

to the public, the County must promptly commence and

complete construction of the proposed resource recovery

facility. [N.T. 25, 28, 29, 30, 41, 43, 47, 49, 118, 155, 199,

262, Exhibit D-2 (xvi, 5-10—5-17), Exhibit D-6, Exhibit

D-8, Exhibit D-9, Exhibit P-6]

App. 57

B. County’s Response To Trash Crisis

27. In late 1982 and early 1983, all municipalities

within Montgomery County adopted formal Resolutions

authorizing the County to perform the planning require-

ments of the Solid Waste M:; anagement Act on their behalf

at the County level. [N.T. 196, Exhibit D-2 (xi, xvi, 1-1),

Exhibit P-6]

28. On October 11, 1982, Plymouth Township passed

Resolution 1982-39 authorizing Montgomery County to

develop a County-wide comprehensive municipal waste

management plan. [N.T. 113-114, Stipulation 19, Ex-

hibit D-4]

29. Township Resolution 1982-39 stated. in pertinent

part:

RESOLUTION 1982-39

PLANNING REQUIREMENTS OF ACT 97

PENNSYLVANIA SOLID WASTE

MANAGEMENT ACT

WHEREAS, the General Assembly of Pennsyl-

vania has passed the Pennsylvania Solid Wasie Man-

agement Act, Act. No. 97 of 1980, and it was signed

into law by the Governor of the Commonwealth: and

WHERE AS, Act 97 requires that each munici-

pality in the Coxamo: wealth shall submit to the De-

partment of Environmental Resources an officially

adopted plan for a solid waste management system

serving areas within its jurisdiction when they have

a population density greater than three hundred (300)

persons per square mile, or when a solid waste prob-

lem exists in any municipality of the Commonwealth:

a nd

* * *

WHEREAS, the municipalities of Montgomery

County do not have legal access to solid waste dis-

App. 98

posal site which has adequate capacity for the next

ten (10) years for the disposal of their municipal

waste at a facility which has a permit under Act 97,

and therefore, the Department of Environmental Re-

sources has identified that waste problem or potential

waste problem exists: and

= * =

NOW, THEREFORE, Bi IT RESOLVED that

the Council of Plymouth Township hereby agree that

the planning requirements of Act 97 should be accom-

plished at the County level on behalf of the munici-

palities and the Council of the Township of Plymouth

will cooperate in the preparation of such a plan.

* * *

PLYMOUTH TOWNSHIP COUNCIL

By: Roperr D. Wurzeacu, Chairman

Attest: James T. Mircnent, Manager /Sceretary

Adopted—October 11, 1982

[N.T. 113-114, Exhibit D-4]

30. Pursuant to its mandate under Act 97, the Coun-

ty initiated development of a comprehensive municipal

waste management plan. To assist in its efforts, the

County engaged Gannett Fleming Corddry and Carpenter,

Ine., now known as Gannett Fleming Environmental Engi-

neers, Inc. (‘Gannett Fleming’’), a nationally reeognized

consulting firm in solid waste management. |N.T. T3-16,

62-33, Exhibit D-2 (xil, xvi), Exhibit P-6]

31. In December 1983, after considering available

sites, estimated life, transportation and environmental

conditions, Gannett Fleming submitted a draft plan to

the County for internal review and comment. | N.T. 81-82,

Exhibit D-2 (8-5—8-6) ]

App. 59

32. After analyzing all of the alternatives, the Coun-

ty concluded that a resource recovery facility presented the

best alternative for solving the waste disposal erisis.

[N.T. 81-82, 231-232, 247-250, Exhibit D-2 (8-1, 8-3—8-4) ].

33. The plan, as developed through December, 1985,

contemplated that a single mass burn resource recovery

facility with a design capacity of 1,800 tons per day would

be constructed in the Township on a 111.6 acre pareel own-

ed by the County to process all of the County’s waste

disposal needs. [N.T. 34-35, 81-82, 112]

34. After gathering comments from its local munici-

palities, the County revised the plan to include six solid

waste districts to be served by six different facilities, ex-

cept that any of the districts could choose to combine and

utilize a single facility. The distriets were numbered and

designated Districts 1-6. [N.T. 30-36, 64, 75, Exhibit D-2

(xil-xill, 8-4+—8-7), Exhibit P-6]

35. The Township is located within District 2. BAY

36]

36. At the time that the plan was undergoing revi-

2 >

sion, the six solid waste districts formed Committees to

discuss the siting and eesti of resources recov-

ery facilities in their arcas. [N.T. 36, Exhibit D-3]

37. On August 20, 1984, the Township Council ap-

pointed its Chairman, Robert D. Wurzbach (‘*Wurz-”

bach’’), as the Township’s representative to the Commit-

‘ee to work on the siting and implementing of the re-

source recovery facility in District 2. [N.T. 114-115, 122,

Exhibit D-5|

App. 60

38. Wurzbach was subsequently elected Chairman of

District 2. [N.T. 36]

39. The authorized representatives from Districts 1

and 2 decided that one facility should he constructed to

service the needs of both distriets. .\ consensus was reach-

ed that the suitable site would be the County-owned pro-

perty in the Township. [N.T. 37, 72, 75, H38,, 147, 205, Ex-

hibit D-2 (xiii, xiv and 8-9—-8-10), Exhibit D-7, Exhibit

P-6]

40. Officials from Distriets 1 and 2 requested that

the two disposal facilities for Districts 1 and 2 be combined

into one facility to be located within the Township. [N.T.

37-38, 165-166, Exhibit D-2 (xili, xiv and 8-9—8-10), Ex-

hibit D-36, Exhibit P-6]

41. On November 2, 1984, the Township, acknowl-

edging the serious solid waste disposal problem in the

region, wrote to the County officially to advise that the

Township desired to participate in the inter-municipal

solid waste disposal program and to encourage the County

to assist municipalities with the disposal of solid waste.

[N.T. 118, Exhibit D-6]

42. The County sought to establish a good working

relationship with the Township. [N.T. 294]

43. In January, 1985, to assure local participation in

the planning and implementation process for the joint

facility, the County formed the Montgomery County Solid

Waste Management Committee (‘‘Solid Waste Manage-

ment Committee’’). [N.T. 38, 102, 294]

44. Wurzbach, Chairman of the Township’s Council

during the relevant period, was a member of the Solid

App. 61

Waste Management Committee and regularly attended its

meetings. [N.T. 38, 100, 103, 121]

45. The first task of the Solid Waste Management

Committee was to prepare.a com; :ehensive Request for

Proposals for a joint facility for Districts 1 and 2

(“RFP’’). {N.T. 38, 100]

46. Two-thirds of the municipal waste in the County

is generated by Districts 1 and 2. [N.T. 51, Exhibit D-2

(4-21—4-22,7-6—7-7) ]

47. The RFP called for a 1,200 tons per day capacity

resource recovery fxacility to be located on the County-

owned property in the Township. [N.T. 39]

48. From February through May, 1985, Wurzbach,

acting as the Township’s representative on the Solid

Waste Management Committee, participated in the prepa-

ration of the RFP for a 1,200 tons per day facility to be

located on the County-owned ground in the Township.

[N.T. 39, 143-144]

49. Wurzbach succeeded in causing the Solid Waste

Management Committee to include in the RFP more strin-

gent air pollution regulations than those which originally

had been proposed. [N.T. 238-239]

00. During the meetings of the Solid Waste Man-

agement Committee, Wurzbach stated that he was in favor

of the 1,200 tons per day facility in the Township. [N.T.

103]

51. In a formal letter dated February 13, 1985 the

Township solicitor reaffirmed the Township’s position

that there would be ‘‘no problem with sizing the incin-

App. 62

erator permitted to a tonnage sufficient to accommodate

* The full text

those communities in Regions l and 2...

of this letter reads as follows:

February 13, 1985

Frederic M. Wentz, Esquire

County Solicitor’s Office

Montgomery County Court House

Norristown, Pennsylvania 19404

Re: Plymouth Township v. Montgomery County

Dear Fred:

This will confirm the conference which you and I held

this date in my office.

I conveyed your thoughts to the Chairman of Ply-

mouth Council, Bob Wurzbach, who indicated that he

saw no problem with sizing the iicinerator permitted

to a tonnage sufficient to accommodate those ecom-

munities in regions 1 and 2 who are willing to com-

mit their waste stream and engage in mandatory re-

eyeling. Obviously, therefore, we are going to have

to get expert engineering advice as to what this ton-

nage will be.

Very truly yours,

Arthur Lefkoe

bee: Robert Wurzbach, Chairman of the Plymouth

Township Council >

James T. Mitchell, Manager of Plymouth

Township

Blind carbon copies of the February 15, 1985 letter were

sent to and received by Wurzbach and James T. Mitchell,

Manager of the Township, on February 13, 1985. [N.T.

144-147, 225-226, Exhibit D-7 | —_

App. 63

C. 1,200 Tons Per Day Ordinance

02. On April 15, 1985, the Township adopted an

amendment to its zoning ordinance which permitted the

proposed 1,200 tons per day facility to be constructed on

County-owned land in the township (‘‘the 1,200 tons per

day Ordinance’’) [N.T, 297, Exhibit D-9, Exhibit D-10]

93. The official tape recording shows that at the

meeting Wurzbach enthusiastically supported and advo-

cated the adoption of the 1,200 tons per day Ordinance.

[N.T. 227-230]

o4. The official minutes of the April 15, 1985 meet-

ing of the Township Council accurately report the foi-

lowing:

Special Meeting

April 15, 1985

A special meeting of Plymouth Township Council

was held this evening in the Plymouth ‘Township

Municipal Building. The following officials were in

attendance:

Council: Robert D. Wurzbach. Chairman

Albert DeAngelis, Vice Chairman

Frank J. Zellner

Joan Grohoski

John J. Washeleski

Staff: James T. Mitchell, Manager

Arthur Lefkoe, Solicitor

* *- »

An extended discussion concerning the roads

Which would be utilized, going and coming, from the

Resource Recovery facility. The Chairman said Coun-

cil cannot control the use of State and ( ‘ounty roads

but the operator of the facility could, and that will be

App. 64

one of the conditions of approval for a facility. Mr.

Klinger said that the courts have held that only rea-

sonable conditions can be imposed and in his opinion

this is not a reasonable condition.

. * *

The intent of Council by adopting this Ordinance,

‘sto solve the solid waste problem for Plymouth and

the eastern portion of Montgomery County, not the

entire county. Without this Ordinance, the chances

of Philadelphia using the facility are much greater

since only one such facility would be permitted in the

district. Hopefully, however, there are no guaran-

tees,

(Questioned from the audience, the Chairman

said that no one sitting on Council wants this type of

nn facility. The point is that the County owns the pro

perty presently and was hought seven years ago for

the express purpose of being utilized as a solid waste

facility for the entire County.

\fr. Zellner said Council is attempting to close

“Pandora’s Box’’—not open it. Ile felt that the

Township was wide open with the current zoning. He

felt that no one can stop a Resource Recovery facility

from coming into the Township mainly because the

County has property in the Township and purchased

it for that express purpose. Originally the County

proposed the property be used for all of Montgomery

County solid waste which Council opposed, The Coun-

ty has abandoned that plan. He felt by adopting the

ordinance the Township can gain a greater amount of

control on the operation of a facility of this type.

Unfortunately, currently we have Heavy Industrial

Zoning which everyone thinks the area is right for

such facilities.

Mr. DeAngelis said the purpose of the meeting

tonight was to establish the Resource Recovery Dis-

App. 65

trict Ordinance. What we are trying to do is con-

dense the area from 750 acres to 123 acres, so that if

and when a facility is constructed, we want some con

trols. This is the whole purpose of this mecting.

Council does not want a facility anymore than you do.

7 7. *

The Chairman called the question made by Mr.

Zellner and seconded by Mr. DeAngelis. The Chair-

man polled the board—Mr. Zellner, Mr. Washeleski,

Mr. DeAngelis and Mr. Wurzbach voted in favor of

the ordinance. Mrs. Grohoski voted against. | N.T.

152-155, Exhibit D-9] [Icmphasis added |

mx

55. Wurzbach supplied the RFP team with the 1,200

tons per day Ordinance for inclusion into the RFP to be

distributed to all interested bidders. [N.T. 39, 104, 243]

56. The 1,200 tons per day Ordinance permitted a

facility up to 165 feet in height, with a processing capacity

of up to 1,500 tons of municipal waste per day, and

through-put of 1,200 tons per day. The resource recovery

district itself included 121.4 acres located within and com-

pletely surrounded by a heavy industrial district, and

acres of the County-owned land including two quarries.

[N.T. 147, 151-152, Iexhibit D-10]

of. On April 29, 1985, only two weeks after the 1,200

tons per day Ordinance was enacted and one week before

the primary election for Township Council, the Council

repealed the 1,200 tons per day Ordinance by a unani-

mous vote. | Exhibit D-11}

08. Although the stated reason for the repeal was

inadequate advertising, the Township never even attempt-

ed to readvertise the 1,200 tons per day ordinance. It

was considered a ‘‘dead issue’? immediately upon repeal.

[N.T. 130, 273, 277-278, 286]

App. 66

59. Intense political pressure caused repeal of the

1,200 tons per day Ordinance one week before the primary

election for Council. [N.T. 40-41, 209, 285, 286]

60. It would have been contrary to the County’s

responsibilities under the Solid Waste Management Act to

have abandoned the plan to develop a 1,200 tons per day

facility on the site in the Township. [N.T. 25, 28, 29, 30,

33, 41, 48, 44-46, 51, 71-72,81-82, 118, 141-142, 153, 24/-

Pd0, 292, U.S. Treasury Dept. November a4. 1984 Report

to President-Tax Reform for Fairness, Simplicity and

Economie Growth, May 29, 1985 President’s Tax Pro-

posal to Congress for Fairness, Growth and Simplicity,

Exhibit P-6, Exhibit D-25 (document 21), 113 Pa.Code

~ §9.6B5 |

61. On May 7, 1985, the County distributed the RFP

for a 1,200 tons per dav facility to 36 prospective vendors.

IN.T. 39, 164-166, Exhibit D-36]

D. Adoption of Ordinance Nos. , 986 and 93

62. On May 29, 1985, all members of the Township

Council other than Grohoski publicly acknowledged: ‘‘ Ply-

mouth Township is unanimously opposed to permitting

any type of solid waste disposal facility within our town-

ship.’ [N.T. 160-168, Exhibit D-12]

63. On June 7, 1985, the Township Solicitor sent the

(‘ouneil a letter stating:

The limitation of tonnage for trash transfer stations

may well be held by a court to be illegal and invalid as

an improper exercise of zoning power bearing no rea-

sonable relationship to the publie health and welfare.

If the business was an othericise permilte douse, would

App. 67

a restriction on the number of deliveries, shipments,

fonnayge manufactured or processed be valid? | think

not. | Emphasis added]

IN.T. 166-167, Exhibit D-13

64. On June 12, 1985, the Township Solicitor advised

the Council that the Commonwealth Court had decided

that the Township could not regulate through zoning the

method of operation of a landfill or trash transfer station.

N.P. 169-171, Exhibit D-15]

60. ‘The official minutes of the June 27, 1985 meeting

of the Township Conneil report the following actions:

Special Meeting

June 27, 1985

A special meeting of Plymouth Township Council

was held this evening in the Plymouth Township

Municipal Building. The following officials were in

attendance:

Couneil: Robert D. Wurzbach, Chairman

Albert DeAngelis, Vice Chairman

Krank J. Zellner

Joan Grohoski

John J. Washeleski

Staff: James T. Mitchell, Manager

Arthur Leftkoe, Solicitor

The Chairman said the purpose of this meeting is to

authorize the Township Manager, Mr. Mitchell, to

advertise Couneil’s

intent to act on three ordinances

at a public meeting on July 8, 1985. The three ordi-

nances that will be considered are (1) the establish-

ment of a Resource Recovery Distriet: (2) amending

App. 68

the Zoning Map to include the Resource Reeovery

District, and (3) Solid Waste Management Ordinance.

- * *

Mr. DeAngelis said that he has stated all along

that he would not vote for an incinerator and he still

does not want an incinerator,

- * *

The Chairyen said Couneil’s intent is to consider an

ordinance creating a Resource Recovery District un-

der Zoning Ordinance 342. [t will be a new district

and it would establish certain eriteria, setbacks, height

limitations, 40 foot height limitations, 250 tons, 50

foot setbacks, basically the samie ordinance with the

limitation on the tonnage.

(N.'T. 171-172, Exhibit D-16]

66. The resource recovery district amendment pro-

posed on June 27, 1985 differed significantly from the

1.200 tons per day Ordinance which had been repealed in

April of 1985:

(a) The design capacity of a resource recovery fa-

cility was limited so that only 250 tons of municipal waste

could be processed per day instead of 1,500 tons per day.

(b) The design capacity of a facility was further

limited to a height (exelusive of stacks) of 40 feet instead

of 165 ‘eet, even though the height imitation in the sur-

rounding heavy industrial district is 100 to 200 feet:

(c) A resource recovery facility was permitted only

within a designated 36.3 acres resource recovery district,

instead of 121.4 acres: and

(d) The County's land included in the new resource

recovery district was limited to approximately 10 acres,

App. 69

instead of 70 acres. [N.T. 172-173, 205-206, Exhibit P-1,

Exhibit P-2, Exhibit D-9, Exhibit D-10, Exhibit D-16, Fy-

hibit D-18]

67. These provisions restrict the waste disposal and

processing capacity of the facility. [N.T. 205-206, Ex-

hibit D-16]

68. On July 8, 1985, the Township passed Ordinances

Nos. 934, 936 and 937. [N.T. 173]

69. These three ordinances are inextricably inter-

related and constitute a single legislative scheme to regu-

late and restrict the operation of resource recovery fa-

cilities. [N.T. 158, 211, 251]

70. Although the Township was advised by its. so-

licitor that limitation of tonnage was of questionable va-

lidity, it nevertheless proceeded with its legislative scheme

for the purpose of keeping all resource recovery facilities

out of the Township. [N.T. 258-259, 261]

71. At the April 15, 1985 Council Meeting, Joan Gro-

hoski, the present Chairperson, stated :

The hope of Plymouth Township at that point in time

is from the original onset of this which was July 23rd

[1984], was to keep it as small as possible and, in fact,

the whole theory behind it was let’s keep everybody

out. [Emphasis added]

[N.T. 261}

72. Ordinances Nos. 934 and 936 and the Township's

Air Pollution Control Ordinance seek to regulate the

transportation, processing and disposal of waste in the

Township. [N.T. 251-252, 253-254, Exhibit D-18, Exhibit

P-1]

App. 70

~e

73. Ordinance No. 934 regulates the processing and

disposal of municipal waste by providing, inter alia, that

operators of solid waste facilities must obtain permits

from the Township, pay fees of up to $100,000 to accom-

pany theif@permit applications, and pay a user fee of $50

per ton for waste processed or disposed of within the

Township. [N.T. 159, Exhibit 1-18 |

74. The portion of Ordinance No, 934 regulating the

licensing of collectors, the source of their material and

the consisteney of material also regulates the disposal of

waste at the facility. [N.T. 254, Exhibit D-18]

75. Ordinance No. 934 regulates the transportation,

processing and disposal of resource recovery facilities by:

(2) / Denying access to vehicle which do not have

loads fully enclosed within the truck body or which utilize

routes other than those designated by the Township;

(b) Requiring the operator of any permitted solid

waste disposal facility to clean litter each day from all

feeder roads for a distance of 1,500 feet from the entrance

of the facility or area:

(c) Requiring veetor eontrol procedures to he ear-

ried out at a minimum of twice each month to prevent

health hazards or nuisances;

(d) Requiring all solid waste disposal facilities to

have a written emergeney operational plany and

(e) Requiring that fifty pereent of all vehicles de

livering solid waste to the facility have a load Capaclty

of not less than forty cubic vards. [N.T. 159-160, 252, ees

Exhibit P-1]

App. 71

76. Unlike any other Township zonine ordinance.

Ordinance No, 936 provides Council with the “last say"

ou any proposed resource recovery facility, thereby vest-

ing unusual “control” over such facilities in its Council.

[N.T. 206-208, Exhibit P-1]

“7. The Township’s air pollution regulations, Section

LO of the Township Code, restrict the processing and dis-

posal of waste at the facility. [N.T. 158, 253, Exhibit D-1 | |

(8. Despite the fact that D.E.R. must review all of

the data required by Ordinances Nos. 934 and 936. the

Township intended to hire an outside consultant and du-

plicate this comprehensive regulacion on the local level.

[N.T. 159, 255-257, Exhibit P-1, Fxhibit D-18]

9. The Township seeks to reeulate the transporta-

tion, processing and disposal of municipal waste by re-

quiring the submittal of environmental and fiscal Impact

studies for review. [Exhibit P-1, Exhibit D-18]

80. On July 8, 1985, the Chairman of the Council

stated that “starting with our hearings back in July of

'S4, we stated that our objective was to restrict. reculate.

{and] monitor solid waste activities in our Township.”

[N.T. 182, Exhibit D-17]

EK. The Adoption of the Plan and the Sienine of the

Contracts.

81. The final draft of the plan, incorporating th

jomt solution to municipal waste disposal for Districts

land 2, was completed in December 1985. [N.T. 41. 184

ISO, Exhibit D-2 (frout eover) ]

SZ. All of the municipalities in the County re viewed

and participated in the development of the Plan.

hibit P-6]

App. 72

93 - Thereafter, the County formally adopted its Mu-

nicipal Waste Management Plan (“the Plan’) and dis-

tributed it to the municipalities. [N.T. 41, 65, 108, 184,

Exhibit [D-2 {(xjI—xXV ). Exhibit P-6]

84 The Plan calls for the development of one 1,200

tons per day resource recovery Mcilitv to meet the dis-

posal needs of municipalities in County Distriets 1 and 2.

(N.T. 185, Exhibit D-2 (viii—viy, 8-9) J

85. The County proposes to construct. the facility

within the geographical district which the Township has

desienated for a resource recovery facility. [N.T. 6, Stip-

ulation 3. site plan ineluded in D.E.R. Permit Applica

tion. |

86. The Township has acknowledged the appropri-

atencss of the County's site for a resource recovery fa-

cility. [N.T. 209-210, Exhibit 1-20] |

87. The proposed site, which is centrally located, 1s

uniquely appropriate for a resouree recovery facility.

[N.T. 3, 81-82, 98, 112, 185-186, 209-210]

ge The resource recovery district is surrounded b)

the Tow uship’s heavy industrial district, where the follow

ing uses are permitted: mining: quarrying: removal of

natural materials: lime kiln: automobile dismantling; junk

establishments; dveing: warehousing; distributing: mete!-

smithing: welding; manufacturing or processing of pla-

tics. hardware, furniture, tools, dyes, tobaeco products or

drnes: and electrical substations. [N.T. YO9-210]

gg The site selected for the resource recovery fa-

cility has good transportation aceess, is close to existing

————

App. 73

transfer stations and includes two quarries owned by the

County. [N.T. 81-82, 210]

9). The Plan proposes that the energy produced from

the resource recovery facility be sold to an appropriate

electric utility for the benefit of the participating munici-

palities. [N.T. 186-187, Exhibit D-2 (8-4, 8-6) ]

91. D.E.R. has Preliminary Approved the County’s

Solid Waste Management Plan as to Districts 1 and 2.

[N.T. 215-216, Exhibit D-23]

92. On December 16, 1985, mindful of the substantial

benefit that the tax-free finaneing which was available for

only several more days would bring to the project, the

County and the County Industral Development Corp.

entered into contracts with Dravo Corporation and its

wholly-owned subsidiaries Dravo Operations of Mont-

gomery County, Inc. and Vravo Energy Resources of the

Montgomery County, Inc. (collectively “Drayvo”) provid-

ing for Dravo to design, construct and operate the 1,200

tons per day resource recovery facility on the County-

owned ground in the Township. [N.T. 9, 112, 187-188,

Stipulation ©4, Exhibit D-2 (10-2, 10-4) Exhibit D-25

(document 21), 118 Pa.Code § 55.6B5]

93. The County facility will only accept municipal or

commercial solid waste, not hazardous or industrial waste.

[Exhibit D-25]

44. The County has made a contractual commitment

to Dravo that county users will deliver at least 280,000

tons per, year of municipal waste to the facility. {N.T.

189, Exhibit D-25]

App. 74

95. Abington, Ambler, Cheltenham, Conshohocken,

Mast Norriton, Hatboro, Horsham, Lower Moreland, Low-

er Merion, Narberth, Rockledge, Springfield, Upper Dub-

lin, Upper Merion, Upper Moreland, West Conshohocken

and Whitemarsh, seventeen of the twenty-four municipaili-

ties in Solid Waste Districts 1 and 2, have executed a con-

tract with the County committing their municipal waste

streams to the proposed facility and are depending upon

the availability of this facility for disposal of their nau-

car Pa

nicipal waste. [N.T. 7-8, 188-189, Exhibit D-25]

96. On December 17, 1985, the County Industrial [De-

velopment Authority issued tax-exempt bonds in the face

amount of $107,000,000 to finance the cost of construction

of the resource recovery facility. [N.T. 9, 190, Stipulation

15, Exhibit D-25]

47. The faeilitv to be construeted is vital to tthe

County’s Aet 97 comprehensive Plan. {Exhibit P-6]

lk. The Township’s Pronounced Bias

98. On November 27, 1985, the Township Solicitor

wrote a letter to Paul B. Bartle, Chairman of the Coumty

Commissioners advising that ‘‘the construction of suelh a

facility will not be permitted unless and until a court rules

to the contrary... [N.T. 8, Exhibit P-8, Stipulation

“11(b)]

99, On December 11, 1985, the Township filed ttwo

lawsuits against the County, both setking to prevent con

struction of the resource recovery facility. {N.T. 9--10,

192 |

100. On December 18, 1985, the Township Council sent

a telegram and the Township’s Solicitor sent a letter adlvis-

App. 75

ing Montgomery County and the underwriter on the bond

issue that even though Plymouth Township’s attempt to

secure a Temporary Restraining Order prohibiting con-

struction of the facility had not been successful, the Town-

ship would oppose the facility through the court system.

[N.T. 190-192, Exhibit D-26, Exhibit D-27 |

101. On March 28, 1986, the Township solictor wrote

a letter to Michael Ellis, Project Director at Dravo ad-

vising that the construction of this facility is ‘‘illegal’’ and

‘‘will not be given a permit unless the court, in current

litigation, rules that the township zoning ordinance is il-

legal and/or invalid.” [N.T. 193, Exhibit D-29]

102. The Chairperson of the Council has admitted

that she is trying to do everything possible to stop the re-

source facility from being constructed in the Township.

(N.T. 209]

103. The statements referred to herein, including

those in Findings 98 through 102, the repeal of the 1,200

tons per day Ordinance and the adoption of Ordinances

934 and 936 despite their questioned validity, demonstrate

the inexorable opposition of the Township to the County

resource recovery facility. [N.T. 209, 255, 254, 258-260,

286, Exhibit D-13, exhibit D-15 |

104. The County’s evidence that the Township is

biased against the proposed facility stands unrefuted.

[N.T. 264-277, 287, 289-369 |

105. The Township has predetermined that it will

=

not issue permits and approvals for the construction of the

resouree recovery tacility and that it will seek to prevent

App. 76

the construction of the facility. |N.T. 8-10, 190-193, 209,

Exhibit P-3, Exhibit D-26, Exhibit D-27, Exhibit D-29 |

106. Unless enjoined and restrained, the Township

will continue to interfere with the proposed resource recoy-

ery facility, causing irreparable harm to the County, the

constituent municipalities and the citizens thereof. [N.T. 8-

10, 25, 28, 29, 30, 41, 48, 47, 49. 118, 155, 190-193, 209, Exhibit

P-3, Exhibit P-6, Exhibit D-6, Exhibit D-8, Exhibit D-9, Fx-

hibit D-26, Exhibit D-27, Exhibit D-29]

107. It would be futile for the County or Dravo to

request permits or approvals for the 1,200 tons per day

facility from the Township. | N.T. 130, 279, 281]

108. Pursuit of the statutory process provided by

Section 1004(1) of the Municipalities Code would be futile

and would result in irreparable harm by wasting desper-

ately needed time and jeopardizing the tax-exempt [i-

naneing required for the resource recovery facility. [N.T.

43-51, Exhibit D-25]

G. The D.E.R. Permit: Approval Process is Under-

way.

109. On April 15, 1986, the County transmitted to

D.K.R. Phase | and Phase Il Applications for a Solid

Waste Processing Permit. | N.T. 10, 199-200, 213-215,

Stipulation © 1S, Exhibit D-230, Exhibit D-32 |

110. On April 30, 1986, the County transmitted to

D.ELR. its Prevention of Significant Deterioration Ai: ;

Permit Application. |N.T. 10,_199-200, Stipulation 1s,

Exhibit D-31 |

111. The very matters which the Township ha-

sought to regulate through the challenged ordinances are,

through these comprehensive submissions, now before

D.E.R. for review. [N.T. 255-256, Exhibit D-21, Exhibit

D-30, Exhibit D-31 |

112.

D.E.R. has the expertise to review the complex

materials submitted, while no one on the Township Council

is an expert in this very technical area. [N.T. 204, Exhibit

D-21, Exhibit D-30, Exhibit D-31]

J

App. id

EXHIBIT B

TOWNSHIP ar PLYMOUTH |) COURT Ol

. COMMON PLEAS

) MONTGOMERY)

COUNTY

) NO) 8) 19293

) DECLARATORY

. JUDGMENT

COUNTY OF VONTGOMERY |) ACTION

NOWNSHIP OF PLYMOUTH |) COURT OF

. COMMON PLEAS

) VWONTGOMERY

VS. . COUNTY

) VO. 8535-19292

COUNTY OF WONTGOMERY © ) IN EQUITY

PROPOSED FINDINGS OF FACT

AXP CONCLUSIONS OF LAW

OF PLAINTIFF, PLYMOUTH TOWNSHIP

| FINDINGS OF FACT

1 On July 4, 1980, the Le ojsiature ena ted the Solid

Wasti \lanae ment \ct Yet ta) 35 PS. GCOS. TOL et seq.

1 sixty (60) days. Exhibit D5)

Inder the rey sions of Seetion W1lte) ol Vet ths

where the required solid wast inna went nit yotan el

passes 1 thal) ¢ e mull } ty red ! al podea

’

~thil | sub | “| ty\ ( oul W fh i?

eonceurrTe nee ot thy LL Tee ect 1Y }) iit ~ a

HOLS O1ic¢) Iexhil |) Sy OL(G)

a In the period 1082 1983, tiie Deter dat 7 sole T; ! Au

thorizauon from the Com tes Municipalities

eountyv-s ide solid waste mana rent polar tO oy 1

I

C

re

App. 19

’ Y ‘ ° | » }

erant from DER and with County funds, and all the

‘unicipalities in the County authorized the Defendant

}

hi

te perform this legislatively mandated planning

netiol » behalf. [Mxhibit D-2, pag villi, Resolu-

- 17/86; N.T. 196].

4 rhe Defendant County plan evolved over a

3) vears, involving three (5) drafts, all

nded bevond the statutorily mandated term

i tw 2 ars from the effective date of the legislation,

vy. September 5, 1982. (Koch, N.T. 35-99, 57, 69).

5 As of January, 1985, the plan proposed by the De

fendant County divided the County into six (6) solid waste

\

districts with each individual district being required to

provide its own disposal facility. (Koch, NT. 35 36).

6. During the five mo th period from January, 1959,

to July, 198), the Plan tiff Township held numerous public

hearings pertaining to the ereation of a resource recover)

distriet in the Township, in which | ‘arings the operati

QO

in the district ol mass-burn facilities of varving sizes Was

- The Defendant County, although awar of the na

ture and oceurrence of the public hearings being hel

the Plaintiff 7 wuhship, never asked to he heard at any ol!

those hearmes ilthousg h one ot the (‘ounty (‘omrmiussioners

d t| or Direct l oft Put he Works ot the Dette ? al; nf sattel! ‘a

1 several of those hearings as observers. (Bartle, N.T.

App. 80

a written request as to the requirements for the proposed

County resource recovery facility. (Bartle, N.T. 295).

9 On July 8, 1985, the Council of Plymouth ‘Town-

ship adopted Ordinance No. 906, creating a resource recov-

ery district zoning classification limiting the number of

he size of any

mass-burn facilities to one and limiting 1

such facility to a capacity not greater than 250 tons per

day. (Exhibit P-1; and Request for \dmission + 32; N.T.

6-7, 173).

10. In addition to certain other lands, ten acres of

land owned by Montgomery County in Plymouth ‘Town-

ship, were zoned Resource Recovery District by Ordinance

No, 937. (Exhibit P-2; Request for Admission 3; N.T. 175).

11. During the year 1985 the County espoused a mass

burn facility in Plymouth Township with a capacity o!

1.200 tons per day despite the fact that the County draft

plan of January, 1985 did not recommend such a facility

(Koch, N.T. 36).

12. Defendant County was at all times aware of what

~ bd - © >’ ‘ } ry P . . 1 -

Was occurring 1h Piymouth Township with respect to Its

Resource Recove \ District ZOMINY clas sification ana Was

made aware prior to and immediately after the adoption

of Ordinances Nos. 936 and 937 that the new ordinance

would pre lude the 1,200 ton ton per dar facility which th

(‘ounty was contempiating at o1 about that time. (Bart

NT. 297-208, Wurzbach, N.T. 126-150)

12. At the time of the adoption of Ordinance No. 936,

Plaintiff Township wa oneerred about solid waste di

4

posal in the Township hecalse ¢ Tye possib lities ofon 11

App. 8]

tiple trash transfer stations and mass-burn facilities since,

in addition to the tentative plans for the County’s facility

the Township had actually received applications for per

mits for five (5) trash transfer stations and two (2)

1,500 ton per day mass-burn facilities from private devel-

vpers. (Wurzbach, N.T. 126, 129-130, 269-270).

14. The adoption of Ordinance No. 936 was aimed at

all pending proposals for solid waste disposal and not

specifically to the Defendant County’s proposal alone.

(Wurzbach, N.T. 126, 269-270, 282, 283-284, and tape of

the Council meeting of 4/15/85, N.T. 262).

15. Defendant County, from July 8, 1985, when Ply-

mouth Township adopted Ordinance No. 936 until the

filing of its Answers to Plymouth Township’s Complaints

on January 8, 1986, a period of six (6) months, took no

action to challenge the validity of that Ordinance. (Wurz-

hach, N.T. 269).

16. Despite the adoption of Ordinance No. 936 by the

Plaintiff and despite the failure of the Defendant to chal

lenge those Ordinanees, the Defendant nonetheless pro

ceeded with plans to construct a 1.200 ton per day faeility

in Plyrreuth Township pursuant to actions to:

a. Solicit municipalities to enter into “year con

tracts to dispose of their municipal solid waste at the pro

posed facility at undetermined tipping fee Wurzbach

b. Enter into contracts with Dravo Corp... Dravo

Energy Resources of Montgomery County, Ine., and Dra

Operations of Montgomery County, Ine. for the construe

,

App. 82

tion and operation of the proposed mass-burn facility (Re-

quest for Admissions 47, 51 and 52; N.T. 187-189) ;

e. Arrange for a tax-free bond issue of $107,000,000

toa fund a portion of the cost of construction of the facility

as part of which the Defendant County was required to is-

sue a letter of eredit in the sum of $2,500,000 to the bond

underwriters as indemnification against any loss should

the amendment to the Plymouth Township Zoning Ordi-

nance be upheld. (Request for Admission 61; N.T. 190;

Exhibit D-25).

17. On January 7, 1986, the Defendant County passed

a resolution adepting the December, 1985 draft as its solid

waste management plan. (Exhibit D-2, Koch, N.T. 401).

18. The resolution adopted by the Commissioners of

the Defendant County recited, inter alia, that municipali-

ties in Solid Waste Distriets 1 and 2 met with County offi-

cials and requested that a single waste disposal facility be

constructed and operated for those two (2) districts.

19. The meeting referred to in the resolution of the

Commissioners of the Defendant at whieh a single waste

disposal facility for Solid Waste Districts 1 and 2 was al-

leged to have been requested never took place. (Wurz-

bach, N.T. 125 and 134).

20. Under the provisions of 25 Pa. Code § 75.11

(c)(2), a solid waste management pian adopted by e muni-

cipality affecting more than one (¢c} municipality and sub-

mitted to DER must contain therein a certification of the

adoption of the submitted plan by the affected municipali-

ties,

App. 83

21. Despite the fact that the Solid Waste Manage-

ment Plan adopted by the Defendant has been submitted to

DER, it has not been submitted to the affeeted municipali-

ties for adoption. (Koch, N.T. 41 and 67).

22. The existence of the solid waste management

crisis within Montgomery County is asserted in the resolu-

tion of the Defendant County Commissioners adopting

the County’s solid waste management plan. (Exhibit D-2).

23. The existence of the solid waste management

crisis is based upon studies performed by the County's

consulting engineers, which studies found that more waste

was being generated by the County than could be disposed

of at existing landfills, as the result of which there was

deemed to be a crisis. (Koch, N.T. 30, 33).

24. The County’s plan rejected the use of landfills

as a viable means of solid waste disposal for the reasons

that there were environmental problems in obtaining new

landfill sites; that the landfill sites would have insuffi-

cient eapacity as compared to a resource recovery facility;

that the County would be required to enter into long terin

contracts for the dumping of municipal wastes; and that

there was no one facility which could accommodate the

County’s needs for the ten year life of the plan. (Koch,

N.T. 44, 81).

25. The County’s plan failed to consider the use of

multiple landfill sites for the disposal of the County's

municipal waste although such a plan would have provided

the required long-term solution to the County’s waste dis-

posal necds. (Smith, N.T. 33s).

26. The County’s solid waste management plan iden-

tifies sites in Upper Providence Township and in Marl-

| App. 84

boro Township as locations which were environmentally

suitable for use as sanitary landfills and which could be

operational sooner than the proposed resource recovery

facility, which will take 33 months to construct. (Smith,

N.T. 339-443).

6p'7

27. Within the geographical boundaries of Mont-

gomery County the total available capacity for disposal!

of municipa! waste by the landfill method is the equivalent

of 2,300 tons per day and, when added to the 250 tons per

day capacity of the plant permitted by the Plymouth

Township Ordinance, the total available capacity of 2,500

tons per day is more than 40% higher than the expected

needs of the County. (Smith, N.'T. 342-343).

“8. There is no solid waste management crisis in

Montgomery County if the use of sanitary landfilling is

considered as a means of resolving that crisis. (Smith,

N.T. 349).

29. The Solid Waste Management Act, in Section

104, emphasizes area-wide planning. [Exhibit D-3, Sec.

104(3)]. ‘

30. The 250-ton per day mass-burn facility permitted

under Plymouth Township Ordinance No, 936 will provide

7.3 times the capacity required by the needs of Plymouth

Township for disposal of its municipal waste and would

serve all of the waste disposal needs of the entire greater

Norristown area in 1990, accommodating the waste

streams from Plymouth Township, Conshohocken. Norris-

town, Whitemarsh Township, Whitpain Township, and

East Norriton Township, (Koch, N.T. 78)

4

31. Plymouth Township is the only municipality in

Pennsylvamia which, in the face of public opposition, has

App. 895

provided for a resource recovery district which would per-

mit the construction of a mass-burn facility to dispose of

more waste than the municipality itself will generate.

(IXoch, N.T. 78-79).

32. Plaintiff’s expert, Dr. Robert H. Smith, by

training, education, background and experience in the field

of solid waste management is well qualified as an expert

to comment on existence or non-existence of a solid waste

crisis and on the County’s solid waste management plan.

(Smith, N.'T. 300-306 ; 320-321).

33. Under the provisions of the Municipalities Plan-

ning Code (MPC), challenges to an ordinance or decision

of the governing body of a municipality issued under the

power to adopt zoning regulations must follow a pre-

scribed procedure which has been declared by the Legis-

lature to be the ‘‘exclusive mode’’ for securing review of

such action. [53 P.S. 11001].

- 34. The provisions of Section 1004 of the MPC out-

line the procedures to be followed by a landowner who

challenges, on substantive grounds, the validity of an or-

dinanee. [55 P.S. § 11004].

35. Defendant Montgomery County did not submit

its challenge to Plymouth Township Ordinance Nos. 936

and 937 to the Township Zoning Hearing Board, or to the

Township Council, as required by Section 1004 of the

MPC. [538 P.S. § 11004].

36. Act 97 provides that solid waste management

‘

Jlans ‘‘shall take into consideration all aspects of plan-

} i

,

ning, zoning’’ and other considerations ‘‘so as to delineate

with precision those portions of the area which may rea-

App. 86

sonably be expected to be served by a municipal waste

management system. . . .’’? [Exhibit D-3, See.

201(e)(2)]).

37. Act 97 contains no language expressly pre-empt-

ing a municipality’s right to zone within its geographical

boundaries nor does the Act do so by implication. (Ex.

hibit D-3).

39. Section 617 of the Municipalities Planning Code

authorizes the governing body of a municipality, in addi-

tion to other remedies, to institute an action to prevent or

restrain any act on conduct by which a building on land ‘‘is

proposed to be erected, constructed ... or used in violation

of any ordinance enacted under this act.’”’

40. The actions of the Defendant threaten a violation

of the Plymouth Township Zoning Ordinance as amended

by Ordinance No. 936.

41. The Plaintiff is entitled to injunctive relief

against the Defendant.

42. The Plaintiff is entitled to a declaration that its

Zoning Ordinance, as amended by Ordinance No. 936, is a

valid exercise of the zoning power under the Municipali-

ties Planning ode and is enforceable as against the De-

fendant.

43. The Solid Waste Management Act is not ap-

plicable to the Plaintiffs actions in Equity or under the

Declaratory Judgment Act and does not preempt loca!

zoning power.

App. 87

EXHIBIT C

II. PROPOSED CONCLUSIONS OF LAW FOR

PHASE I OF TRIAL

A. Jurisdiction

1. The Legislature has declared as a matter of public

policy that inadequate solid waste practices ‘‘cause irrep-

arable harm to the public health, safety and welfare.”’’

35 P.S. § 6018.102.

2. Resort to an incomplete or biased statutory proc-

ess would be futile and would cause irreparable harm to

the County. Duquesne Light Co » Upper St. Clair Twp.,

377 Pa. 323, 339, 105 A.2d 287, 294 (1954).

3. This Court has jurisdiction over the Complaints

in these consolidated actions and the County’s Counter-

claim and prayers for declaratory relief. 42 Pa.-C.S.A.

S981(a); Shenango Valley Osteopathic Hospital v. De-

partment of Health, 499 Pa. 39, 46 n.7, 451 A.2d 43

(1982): Feingold v. Bell of Pennsylvania, 477 Pa. 1, 9-11,

383 A.2d 791, 795-96 (1978); Horne v. Township of Hill-

town, 461 Pa. 745, 337 A.2d 858 (1975): Gladwyne Colony,

Ine. ve. Township of Lower Merion, 409 Pa. 441, 447, 187

A.2d 549, 552 (1963); Duquesne Light Co., supra, 377 Pa.

at 339, 105 A.2d at 294: Heasley v. Operative Plasterers

& Cement Finishers International Association, 324 Pa. 257,

261, 188 A. 206, 208 (19386); McVay v. Zoning Hearing

Board, 91 Pa.Commw.Ct. 287, 496 A.2d 1328 (1985): Baker

v. Comm... Pa. Human Relations Commission, 75 Pa.-

Commw.('t. 296, 462 A.2d 881, 885 (1983).

4. If this Court finds an ordinance invalid, it has

jurisdiction to order a particular use approved. 53 P.S.

~ 1101102).

App. 88

B. Liberal Construction Of Solid Waste Manage-

ment Act

d. The Solid Waste Management Act must liberally

be construed, so as to best achieve the goals and purposes

of the Act. 35 P.S. § 6018.901.

C. The County Is Proceeding Pursuant To The Solid

Waste Management Act.

6. The County’s Municipal Waste Management Plan

was formally adopted on January 7, 1986.

7. Inthe development and preparation of its Munici-

pal Waste Management Plan, the County provided for the

participation and review of all affected municipalities.

35 P.S. ¢ 6018.201(b).

8. D.E.R. has ‘‘Preliminarily Approv[ed]’’ the por-

tion of the Plan which covers Solid Waste Districts Nos.

1 and 2, 35 P.S. § 6018.201(g).

9. D.K.R. is charged with the responsibility of re-

viewing the Montgomery County Solid Waste Manage-

ment Plan. Any substantive challenge to the conclusions

reached therein is not properly before this Court.

10. The County is responsible for implementing the

Preliminarily Approved Plan. 35 P.S. § 6018.202(a).

D. Fhe Respective Roles Of D.E.R. And Local

Municipalities Under The Solid Waste Manage

ment Act.

11. The Legislature has charged D.E.R. with the ex-

clusive authority to develop a ‘‘Statewide solid waste man-

agement plan in cooperation with local government .. .

emphasis shall be given to area-wide planning.’’ 35 P.S.

§ 6018.104(3).

App. 89

12. The Solid Waste Management Act has vested

D.E.R. with the exclusive authority of regulating the

‘‘transportation, processing, treatment and disposal’’ of

all solid waste, including municipal waste. 35 P.S.

§ 6018.104(6).

13. Under the Solid Waste Management Act, munici-

palities are preempted from adopting ordinances, regula-

tions and standards except those regulating the “storage”

and “collection” of municipal waste generated within their

borders. 35 P.S. § 6018.202(b).

14. Pursuant to the Solid Waste Management Act,

D.E.R. has exclusive authority to establish standards for

the transportation and incineration of solid waste. 25 Pa.

Code $§ 75.29 and 75.30.

15. No solid waste incinerator facility may be con-

structed or operated without the issuance by D.E.R. of

solid waste and air permits. 35 P.S. §6018.501(a) and

25 Pa. Code § 75.30(e) and (e).

16. Standards for solid waste disposal are estab-

lished by the Environmental Quality Board. 35 P.S.

§ 6018.105(a) and (i).

17. The Solid Waste Management Act manifests a

legislative intention uniformly to regulate the transporta-

tion, processing and disposal of municipal waste through-

out the Commonwealth. Crown Wrecking Co., Inc. v.

Township of Ross (C.T. Allegheny Co. 1984), aff’d 500

A.2d 12983 (Pa.Commw.Ct. Dec. 1985); Municipality of

Monroeville v. Chambers Development Corporation, 88 Pa.

Commw.Ct. 603, 491 A.2d 307 (1985); Fiore v. Township

of Elizabeth, 130 P.L.J. 184 (C.T. Allegheny Co. 1981).

18. Pursuant to the Act’s grant of exclusive author-

ity, D.E.R. has promulgated regulations which require all

solid waste disposal facilities to comply with environ-

mental and operational standards established thereunder:

——— OE —S—

App. 90

‘‘(a) A permit shall be required of any person,

municipality, State Agency or authority proposing to

use or continue to use their land or any other land as

a solid waste processing or disposal area.

(d) All facilities shall comply with the general

standards set forth in this Chapter.

(e) Planning, design, and operation of any solid

waste processing or disposal facility or area including,

but not limited to resource recovery system, sanitary

landfills, incinerators, compost plants, transfer sta-

tions, and solid waste salvage operations shall be in

accordance with the standards of the Department.

(f) The Department, upon its own recommenda-

tion or the recommendation of the Solid Waste Man-

agement Advisory Committee will adopt and revise

and conduct periodic reviews of such standards as it

deems necessary to prevent nuisances and pollution

of the air, land, or waters of this Commonwealth. Such

standards and revisions will inelude, but not be limit-

ed to, procedures to ensure suitability of the site and

the proper operation of the transfer station, sanitary

landfill, incinerator, compost plant, solid waste sal-

vage operation, or other solid waste processing or

disposal operation.

(g) No person shall operate a solid waste

processing or disposal facility area or system which

is not in compliance with the provisions of this Chap-

ter

(h) <All areas of solid waste management systems,

including all processing and disposal facilities, shall

be operated in such manner as to prevent health haz-

ards and environmental degradation.’’ 25 Pa. Code

. 75.21. [Emphasis added}

19. The Solid Waste Management Act provides that

an application for a permit shall be made on the forms

—_

App. 91

provided by D.E.R. and shall be accompanied by the

plans, designs and data which the department requires.

§ 6018.502(a).

20. D.E.R. requires applicants for permits to pro-

vide extensive information as to economic impact, envir-

onmental affects, design technology, plans and specifica-

tions. 35 P.S. §6018.502(a). [Exhibits D-30 and D-31]

21. The Solid Waste Management Act specifically

provides that host community input into the permits pro-

cess shall be through recommendations to D.E.R. 35 P.S.

§ 6018.504.

22. The Solid Waste Management Act precludes veto

of a proposed facility by a local municipality. 35 P.S.

§ 6018.504.

23. The Township’s attempts to regulate the trans-

portation, disposal and processing of solid waste are con-

trary to the explicitly expressed legislative scheme of the

Solid Waste Management Act.

24. A dissenting local resident may obtain a hearing

before the Environmental Hearing Board, and the Solid

Waste Management Act specifically authorizes munici-

palities to initiate litigation to enforce the provisions of

the Act and the regulations promulgated by D.E.R. 35

P.S. § 6018.604(b)

KE. The Township’s Ordinances Are Preempted By

The Solid Waste Management Act.

25. The Township is preempted by the Solid Waste

Management Act from regulating, or interfering with the

County’s efforts to effectuate, the construction and oper-

ation of the 1,200 tons per day resource recovery facility.

App. 92

26. In any event, since the proposed resource recov-

ery facility complies with the site zoning requirements of

Ordinances Nos. 936 and 937, the Township is preempted

from regulating, or interfering with the County’s efforts

to effectuate, the construction and operation of the 1,200

tons per day resouree recovery facility.

27. The 250 tons per day limitation on design ca-

‘apity contained in Seetion 8302(¢c) of Township Ordi-

nance No. 936 conflicts with D.E.R’s exclusive authority

to regulate the planning, design and operation of any re-

source recovery facility.

28. The forty foot height limitation contained in

Section 3301(e) of Ordinance No. 936 conflicts with

D.E.R.’s exclusive authority to regulate the planning,

design and operation of any resource recovery facility.

29. The requirement of a fiseal impact study dictated

by Ordinance No. 986 duplicates and conflicts with Section

201(e) of the Solid Waste Management Act, 35 PS.

§ 6018.201(e).

30. The requirement of an environmental impact

study dictated by Ordinanee No. 936 duplicates and con-

flicts with D.E

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