Bakerstown Liquid Burners, Inc. v. Richland Township

447 A.2d 1071, 67 Pa. Commw. 559, 1982 Pa. Commw. LEXIS 1424
CourtCommonwealth Court of Pennsylvania
DecidedJuly 21, 1982
DocketAppeals, Nos. 1127 C.D. 1981 and 1129 C.D. 1981
StatusPublished
Cited by4 cases

This text of 447 A.2d 1071 (Bakerstown Liquid Burners, Inc. v. Richland Township) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bakerstown Liquid Burners, Inc. v. Richland Township, 447 A.2d 1071, 67 Pa. Commw. 559, 1982 Pa. Commw. LEXIS 1424 (Pa. Ct. App. 1982).

Opinion

Opinion by

Judge Rogers,

In these consolidated cases, the Concerned Citizens Action Program, intervenor below, appeals from two orders of the Court of Common Pleas of Allegheny County sustaining the appeal of Bakerstown Container Corporation (Bakerstown) from the revo[561]*561cation by tbe Richland Township Zoning Officer1 of certain permits previously issued to Bakerstown and compelling, by means of a writ of mandamus, the re-issuance of the permits. Because we agree with the appellants that the Court of Common Pleas was without jurisdiction in this matter and that Bakerstown’s appeal should have been taken to the township zoning hearing board, we will grant the relief requested by the appellants and will vacate the order of the Court of Common Pleas and remand the record with directions that the cause be transferred to the zoning hearing board for further proceedings.

In June, 1980, Bakerstown, by its president Yanee Smith, after consultation with Denis Ranalli, the Richland Township Zoning Officer, applied for and was granted a building permit authorizing the construction of an incinerator to be used in conjunction with Bakerstown’s steel drum reconditioning plant. Specifically, Smith represented to Ranalli and to the township planning commission that the proposed incinerator was desirable in that its extremely high temperature of operation would allow the safe disposal of paint by-product residues found in the steel drums reconditioned by Bakerstown. At a cost of some $200,000, the proposed incinerator was subsequently constructed and an occupancy permit was issued on December 3, 1980. Prior to the commencement of its operation, however, it came to the attention of Ranalli that Bakerstown intended to incinerate [562]*562at the site, in addition to the paint by-product residues, liquid wastes generated by other local industrial concerns and, by letter dated January 21, 1981, Ranalli informed Bakerstown that the building and occupancy permits previously issued were revoked.

Bakerstown sought review of this act of revocation by two means. In February, 1981, Bakerstown filed a “Notice of Zoning Appeal” in the Court of Common Pleas of Allegheny County. At the same time Bakerstown filed a complaint in the nature of an application for the issuance of a writ of mandamus. These actions were consolidated and two hearings were conducted by the Honorable Nicholas P. Papadakos for the court below on April 7 and 8, 1981.

At the hearings Smith and Ranalli testified to the facts described above and Smith testified that it had always been his intention to use the newly constructed incinerator apparatus primarily for the disposal of wastes generated by the drum reconditioning process but that preliminary experimentation with the incineration of these paint by-product residues had revealed the necessity of combining the residues with an industrial solvent in order to reduce their viscosity and permit their introduction into the combustion chamber. Smith further testified that contaminated solvents produced as a waste product by other industrial processes were suitable for the purpose of thinning the paint residues and that he now proposed to incinerate, for a fee to be charged to the producers, such contaminated solvents. Ranalli testified to his belief that the permits were properly revoked because the issuance of permits had been predicated on the representations of Smith, now known to be less than wholly accurate, that only wastes generated by the drum reconditioning process were to be incinerated. The court below granted the relief requested — the re-issuance of the permits — expressly conditioned on a [563]*563prohibition against the incineration by Bakerstown of contaminated solvents imported from elsewhere.

On this appeal the citizen intervenors renew the contention, rejected below, that mandamus was unavailable to Bakerstown under these circumstances and that any appeal from the action of the zoning officer ought to have been addressed in the first instance, to the township zoning hearing board. Although in our judgment, and, as is indicated by the failure of either Bakerstown or the township to appeal from the orders of the court below, the orders here challenged accomplished substantial justice, we must sustain the jurisdictional contention.

The direct appeal to the lower court should not have been entertained. Section 1006(c) of the Pa. Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §11006 (c), after describing several classes of landowner appeals not here pertinent provides:

(c) To the extent that the [zoning hearing] board has jurisdiction of the same under section 909 all other appeals shall lie exclusively to the zoning hearing board.

Section 909 of the MP.C, to which reference is made, grants jurisdiction to the zoning hearing board to:

hear and decide appeals where it is alleged by the appellant that the zoning officer has failed to follow prescribed procedures or has misinterpreted or misapplied any provision of a valid ordinance or map or any valid rule or regulation governing the action of the zoning officer.

These provisions have been consistently held to invest the zoning hearing board with exclusive initial appellate jurisdiction over claims that a zoning permit has been wrongfully issued, denied, or revoked. Appeal of Gilbert, 34 Pa. Commonwealth Ct. 299, 383 [564]*564A.2d 556 (1978); Soltis v. Hanover Associates, 22 Pa. Commonwealth Ct. 637, 350 A.2d 217 (1976). Indeed, appellant expressly concedes in its brief that no direct judicial review of the permit revocation is authorized by the MPC and we reject its suggestion that statutes providing a right to judicial review of other actions of municipalities, including the Local Agency Law, 2 Pa. C. S. §§551-555, 751-754, have some application in this context. See Section 615 of the MPC, 53 P.S. §10615 (“All appeals from decisions of the zoning officer shall be taken in the manner set forth in this act.”); Section 1001 of the MPC, 53 P.S. §11001 (“The proceedings set forth in [MPC Article X] shall constitute the exclusive mode for securing review of any ordinance, decision, determination or order of the governing body of a municipality, its agencies or officers adopted or issued pursuant to this act.”)

Neither was mandamus properly available to Bakerstown to compel reissuance of the permits. “[M]andamus is an extraordinary writ which lies to compel the performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other appropriate and adequate remedy.” Valley Forge Racing Association v. State Horse Racing Commission, 449 Pa. 292, 295, 297 A.2d 823, 824-825 (1972). Bakerstown contends that its legal right to the permits is clear not because their original issuance was required by the terms of the applicable zoning ordinance2 but because vested rights had been acquired in the permits under the [565]*565rule announced in Petrosky v. Zoning Hearing Board of Upper Chichester Township, 485 Pa. 501, 402 A.2d 1385 (1979). In

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Bluebook (online)
447 A.2d 1071, 67 Pa. Commw. 559, 1982 Pa. Commw. LEXIS 1424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bakerstown-liquid-burners-inc-v-richland-township-pacommwct-1982.