AlliedNews.com - Grove City, Pennsylvania

February 19, 2013

Landfill fight goes to higher level

By Felicia A. Petro/Senior Reporter
Allied News

LIBERTY, PINE TOWNSHIPS — Owners of Tri-County Landfill, Inc. are taking the decades-long fight to reopen and enlarge a landfill in Liberty and Pine townships to the Commonwealth Court of Pennsylvania.

The landfill - which operated since the 1940s in the townships - was closed in 1990 by the state Department of Environmental Protection, which has also denied attempts at expanding the landfill since 1976.

However, local laws supersede DEP's laws in deciding whether a landfill can operate.

After Liberty and Pine imposed a 40-foot height restriction on landfills - under their zoning ordinances' definition of a structure - Tri-County appealed to Mercer County President Judge James Dobson, who sided on Jan. 15 with the townships on that issue.

Dobson sided with Tri-County on other matters, however.

For instance, the former landfill existed before zoning in Pine; however, since it was closed for more than 12 months, the township deemed it to be an abandoned, non-conforming use no longer grandfathered as an industry in a now-residential zone.

Tri-County contended that it never abandoned hope of getting a DEP permit to reopen its landfill. Dobson agreed; the Vogel family owners have spent $4 million to $5 million - and submitted mounds of paperwork - in their efforts since 1976. 

Liberty agreed that the company could expand the landfill in its township because it would be in an industrial zone; the trick was the contentious, conditional 40-foot trash mound height limit.

"We're very pleased with (Dobson's) decisions because he affirmed that the landfill is a valid non-conforming use in Pine Township and a valid conditional use in Liberty Township," said Clifford Levine, Pittsburgh attorney for Tri-County, on Friday.

However, the company wants the landfill to be about four times higher than 40 feet. Tri-County gave a notice of its intent to appeal Dobson's decisions to the Commonwealth on Feb. 4.

The height limits in the townships "constitutes a legal interpretation, and 40 feet would not allow for us to sustain a viable landfill," Levine said, essentially excluding landfills from operating.

"If you can build a building but it can only be the size of a postage stamp, then it's not a building. (The townships' ordinances) wouldn't be constitutional because the reality is you can't build a landfill ... in Pine and Liberty now."

The appeal notice was filed in Mercer County courts, which will transfer it to the Commonwealth Court. Levine suspected that the Commonwealth would ask Tri-County's counsel "to identify the specific challenges where (Dobson) erred," he said, within the next couple of weeks.

From there, briefings would be scheduled "and probably in a few months an oral argument, where judges would hear issues raised," he added. Normally three judges will decide a case, but there could be up to seven depending on its complexity, Levine noted.

The proceedings would likely be scheduled in Pittsburgh, but could defer to courts in Philadelphia or Harrisburg, he continued. "These decisions range from five to nine months."

Levine, who does "a lot of land use cases and a lot of appeals," he said, would not comment on what type of arguments he'll be making for Tri-County's new appeal.

However, "In a case like this, it's pretty significant and we're relying on Supreme Court (of Pennsylvania) precedent," he said. "We're really hopeful the commonwealth would follow the precedent and realize the landfill is not a structure. We're 90 percent on board with (Dobson's) ruling; it's just one interpretation that the landfill is a structure."

If Tri-County fails in its appeal to the Commonwealth Court, the next ste[ would be the Supreme Court of Pennsylvania, which would require permission to be heard.

Published Feb. 9, 2013, in Allied News. Pick up a copy at 201 A Erie St., Grove City.