ELR Citation: ELR 20438
No(s). 1741 C.D. 1981 (Pa. Commw. Ct. Sep 14, 1982)

The court rules that a township and its zoning board may not exclude a sanitary landfill absent a showing that protection of the public health and welfare requires the exclusion. The court first holds that the Lower Providence Township and its zoning board cannot require a zoning permit applicant to pay their legal fees. The court finds that state law authorizes the board to employ legal counsel, and the township to appropriate money for the purpose of supporting or opposing zoning board decisions, and therefore, the governmental units cannot charge their legal and engineering consulting fees to applicants.

Next, the court reverses the lower court and holds that the zoning board erred in denying appellant a zoning permit. First, the township's zoning ordinance in effect at the time appellant applied for the permit was unconstitutional because it totally prohibited sanitary landfills, a legitimate business, and the township failed to prove that the prohibition bore a substantial relationship to health, safety, or welfare. Next, the court holds that appellant qualifies for a permit under the present ordinance which allows sanitary landfills under a special exception provision. Appellant cannot be denied a special exception on health and safety grounds because his proposal will not affect health and safety in a different manner or to a greater degree than normally attends sanitary landfills. The court remands the record and directs the board to issue appellant a zoning permit.

Counsel for Appellant
Steve H. Lupin
Hamburg, Rubin, Mullin & Maxwell
800 E. Main St., Lansdale PA 19446
(215) 368-3600

Counsel for Appellee
Richard C. Sheehan
1020 S. Park Ave., Audubon PA 19407
(215) 666-7274

Before CRUMLISH, President Judge, and ROGERS, BLATT, CRAIG, and MacPHAIL, JJ.

MacPHAIL, J., concurs in result only.