Land­fill op­po­nents ap­peal to state court

The Citizens' Voice - - REGION - BY JEFF HOR­VATH STAFF WRITER Con­tact the writer: jhor­[email protected]­rock.com 570-348-9141; @jhor­vathtt

Fol­low­ing an Oc­to­ber county court rul­ing they found un­fa­vor­able, Friends of Lack­awanna and six Dun­more res­i­dents now want a state ap­pel­late court to rule on whether the bor­ough’s zon­ing or­di­nance can limit the fu­ture height of a new moun­tain of waste at Key­stone San­i­tary Land­fill.

At is­sue is whether the or­di­nance’s 50-foot height lim­i­ta­tion ap­plies to the land­fill. Bor­ough res­i­dents Joseph and Mari May, Ed­ward and Bev­erly Mizanty and Todd and Katharine Span­ish, as well as Friends of Lack­awanna, the pri­mary group op­pos­ing a pro­posed ex­pan­sion of the fa­cil­ity, ar­gue the land­fill’s trash pile con­sti­tutes a “struc­ture” and that the or­di­nance’s height re­stric­tion ap­plies to struc­tures in man­u­fac­tur­ing dis­tricts. Lawyers for Key­stone and its af­fil­i­ated com­pa­nies ar­gue the height limit ap­plies to build­ings, not struc­tures, and that the or­di­nance dis­tin­guishes be­tween the two. They also re­ject the no­tion that the land­fill con­sti­tutes a “struc­ture” un­der the or­di­nance.

Northamp­ton County Se­nior Judge Leonard Zito, the vis­it­ing judge as­signed the case af­ter ev­ery Lack­awanna County judge de­clined to pre­side, is­sued an or­der in Oc­to­ber uphold­ing a 2015 Dun­more Zon­ing Hear­ing Board de­ci­sion that sided with Key­stone in the mat­ter. An at­tor­ney for Friends of Lack­awanna and the six land­fill neigh­bors filed an ap­peal Nov. 19 chal­leng­ing Zito’s or­der in Com­mon­wealth Court.

“There is very clear case law from the Penn­syl­va­nia Com­mon­wealth Court that says that a land­fill is a struc­ture, and the or­di­nance is very clear that there are height lim­i­ta­tions that ap­ply to all struc­tures in the bor­ough,” said Jor­dan B. Yea­ger, the lawyer rep­re­sent­ing the neigh­bors and the cit­i­zens’ group.

Yea­ger ref­er­enced a Jan­uary 2014 Com­mon­wealth Court rul­ing on a land­fill pro­posed in Mercer County in which the court found a town­ship zon­ing or­di­nance lim­its the height of struc­tures to 40 feet and that the or­di­nance’s def­i­ni­tion of struc­tures in­cludes land­fills.

That case — Tri-county Land­fill Inc. v. Pine Twp. Zon­ing Hear­ing Board — shouldn’t be com­pared to the Key­stone case, said Jeff Be­lardi, an at­tor­ney for the land­fill and its af­fil­i­ated com­pa­nies, who called Zito’s opin­ion “strong” and “well-rea­soned.”

“This case is fac­tu­ally dif­fer­ent and the or­di­nances are dif­fer­ent,” he said.

The Friends of Lack­awanna ap­peal comes as the state Depart­ment of En­vi­ron­men­tal Pro­tec­tion con­tin­ues to re­view Key­stone’s ex­pan­sion ap­pli­ca­tion. The land­fill ini­tially asked DEP to al­low the bury­ing of trash 165 feet higher in the ex­pan­sion area than on ex­ist­ing per­mit­ted ar­eas, but has since amended its ap­pli­ca­tion to elim­i­nate the in­creased height.

Ar­gu­ing Key­stone could amend the ap­pli­ca­tion again in the fu­ture, Yea­ger said the height-lim­i­ta­tion ques­tion re­mains cru­cial.

Each side will have the op­por­tu­nity to file briefs sup­port­ing their re­spec­tive po­si­tions. The court may hear oral ar­gu­ments af­ter the fil­ing of briefs and will is­sue a rul­ing at a later date.

TIMES-SHAM­ROCK FILE

Friends of Lack­awanna and some Dun­more res­i­dents are tak­ing their case to com­mon­wealth court on whether the bor­ough can limit the height of Key­stone Land­fill.

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