# Petition for Writ of Certiorari — Township of Plymouth v. County of Montgomery > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0974%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 490 U.S. 1021 ## Text 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. 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 g [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0974%3A1. Public record. Not legal advice.