AP NEWS

Keystone Sanitary Landfill Attempts To Change Dunmore Zoning Ordinance

May 2, 2019

Keystone Sanitary Landfill is trying to change Dunmore’s zoning ordinance to note that landfills are not structures.

The proposed changes, submitted by attorneys for the landfill along with a $500 processing fee, could stop the borough’s ordinance from limiting the height of any future mountains of trash there. Structures located in manufacturing districts in Dunmore cannot be higher than 50 feet, per the ordinance, but the landfill’s lawyers argue the facility is not a structure.

Whether it is or not is a legal question awaiting a ruling in a state appellate court.

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 and found landfills are not structures.

An attorney for Friends of Lackawanna, the primary activist group opposing the landfill’s proposed expansion, and six landfill neighbors — borough residents Joseph and Mari May, Edward and Beverly Mizanty and Todd and Katharine Spanish — filed an appeal on Nov. 19 challenging Zito’s order in Commonwealth Court.

While a judge has yet to rule on that appeal, the zoning ordinance amendment submitted by the landfill cites the zoning hearing board’s September 2015 ruling and Zito’s order upholding the board’s decision.

If ultimately approved by council, the proposed changes would amend the ordinance’s definition of a sanitary landfill by stating they “shall neither be considered, nor subject to regulation as, structures for purposes of this ordinance.”

“KSL (Keystone Sanitary Landfill) knows that modern landfills, according to the controlling Pennsylvania case law, are structures,” Pat Clark, a founding member of the Friends of Lackawanna, wrote in an email. “That’s why they are throwing this Hail Mary pass hoping for the Borough of Dunmore to bail them out on this end run around our ongoing litigation and the existing case law.”

The existing case law — Tri-County Landfill Inc. v. Pine Twp. Zoning Hearing Board — is 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.

Multiple attempts to reach attorney Jeff Belardi, who submitted the petition for the zoning amendment on Keystone’s behalf, were unsuccessful. Last year, Belardi called the Dunmore case and the Mercer County case “factually different.”

Keystone consultant Al Magnotta referred all questions to Belardi.

The Lackawanna County Regional Planning Commission reviewed the proposal to change Dunmore’s zoning ordinance and “cannot make a recommendation” at this time, according to an ordinance/amendment evaluation report obtained by The Times-Tribune. Whether landfills are structures subject to height restrictions in a zoning ordinance “is unsettled law in Pennsylvania,” the report notes, citing among other things the pending appeal in Commonwealth Court and the Mercer County case.

Dunmore’s planning commission has not made a recommendation on the amendment, but may discuss the proposed changes at its meeting tonight, member Al Senofonte said. That meeting is scheduled for 7 p.m. at the Dunmore Borough Building, 400 S. Blakely St.

The borough also will take public comment on the proposed zoning amendment at a public hearing at 7 p.m. May 15 at the Dunmore Community Center, 1414 Monroe Ave.

“If Dunmore approves this request, it is ignoring reality, history, controlling case law and our future,” Clark said in his email. “There’s only one logical and just conclusion — denial of this request.”

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.

Because Keystone could always amend the application again, the height-limitation question remains key, Jordan B. Yeager, the lawyer representing the neighbors and the citizens’ group in the Commonwealth Court appeal, said last year.

Contact the writer: jhorvath@timesshamrock.com; 570-348-9141; @jhorvathTT on Twitter