Landfill opponents appeal to state court
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.
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.