Commonwealth v. East Brunswick Township, 956 A.2d 1100(Pa. Cmwlth. 2008).
Commonwealth v. East Brunswick Twp., 980 A.2d 720 (Pa. Commw. Ct. 2009).
The Attorney General had standing to bring an action, at the request of a citizen, in original jurisdiction in the Commonwealth Court against the Township for an alleged “unauthorized local ordinance” under the Agricultural, Communities and Rural Environment Act (“Act 38”). The Court found that Act 38 was constitutional; however, the Court denied summary relief because it was unclear whether the application of sewage sludge was a normal agricultural operation.
On December 6, 2006, the Township enacted an ordinance which prohibited any corporation from using sewage sludge to fertilize its land; individuals were allowed to apply sewage sludge with a permit from the Township. An individual in the Township owned and operated a corporation which ran a tree farm which applied sewage sludge according to a permit which it received from the Department of Environmental Protection. The ordinance prevented the corporation from doing this so the individual requested that the Attorney General (“AG”) review the ordinance and determine whether it was an “unauthorized local ordinance” under the Agricultural, Communities and Rural Environmental Act (“Act 38”). Act 38 prohibits townships from adopting “unauthorized local ordinances” which prohibit or limit a normal agricultural operation. This may be enforced upon initiation of an action by the AG. The AG reviews an ordinance upon request from an owner or operator of a normal agricultural operation. Here, the AG concluded that the Ordinance was unauthorized because the Township lacked the authority to regulate sewage sludge, the Township lacked the authority to strip a corporation of rights and the ordinance was preempted by state statutes.
The AG filed a petition in original jurisdiction in the Commonwealth Court seeking to have the ordinance invalidated. The AG also filed an Application for Summary Relief because he believed that the ordinance was invalid on its face. The Township countered that Act 38 is unconstitutional, that the AG lacked standing and alternatively that Act 38 saves the ordinance from being “unauthorized.” Further, the Township argued that the AG’s pleading should have been styled as a complaint.
The Township first argued that Act 38 was unconstitutional because it infringed on the Township’s right to protect the health, welfare and safety of its citizens. Further, the Township argued that the Pennsylvania Constitution gives local government superior power. The Commonwealth Court disagreed and found that local government is clearly subordinate to state government. The Township also argued that the Declaration of Rights in the Pennsylvania Constitution gives local government superior rights; however, the Commonwealth Court found that the superior rights belong to the individual, not to municipal corporations. Therefore, the Commonwealth Court found that the Township failed to overcome the presumption that the statute was constitutional.
Next, the Township argued that Act 38 expressly authorized the Ordinance because Act 38 provides that “nothing in this chapter shall be construed to diminish . . . or otherwise affect . . . the authority of local government.” The Commonwealth Court looked at the dictionary definition of “affect” and decided that local government’s power was not otherwise changed by the Act. The Commonwealth Court rejected the Township’s claim that the ordinance was exempt from being found an “unauthorized local ordinance.”
The Township also argued that the AG lacked standing to bring the action. However, the Commonwealth Court found that the AG was given legislatively conferred authority to bring an action to enjoin the enforcement of the unauthorized local ordinance. Further, Act 38 provided that an injury had occurred by the presence of an ordinance which purportedly interfered with normal agricultural operations.
Finally, the Commonwealth Court addressed the Township’s arguments that the AG’s action should have been styled as a complaint and that summary relief should be denied because it was a case of first impression. The Commonwealth Court found that the Pennsylvania Rules of Appellate Procedure expressly state that a petition for review is the appropriate pleading where the petitioner seeks review of a governmental action. Also, Act 38 authorizes the AG to bring an original jurisdiction action against a local government to invalidate an unauthorized local ordinance. The Commonwealth Court also found that the availability of summary relief is not dependant on whether the case is one of first impression. However, the Commonwealth Court did hold that summary relief is only available where the right to relief is clear and here, whether the application of sewage sludge to land is a normal agricultural operation protected by Act 38 was not clear as a matter of law, summary relief must be denied.
Following the suit by the Attorney General to invalidate the ordinance, the Township replaced it with an ordinance that made the use of sewage sludge very difficult. Again, the Attorney General filed a Petition for Review contending that the purpose of the ordinance was to prohibit the use of sewage sludge within the Township.
The Commonwealth Court determined (1) that the Township’s ordinance was preempted by the Solid Waste Management Act; (2) that the Township could seek to enjoin a violation of the Solid Waste Management Act, but that it could not police the use of sewage sludge itself; (3) the Nutrient Management Act preempts the Township’s ordinance which was more stringent than what the Act required; and (4) that the Township’s ordinance violated Section 11(a) of the Agricultural Area Security Law which required the Township to encourage farming.
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