DUNMORE – City council unanimously voted to present a proposed zoning ordinance on Monday after attorneys for Keystone Sanitary Landfill and JP Mascaro & Sons threatened legal action over landfill restrictions.
Dunmore is one of nine parishes in Lackawanna County participating in the Scranton-Abingtons Planning Association, a collaboration between Clarks Green, Clarks Summit, Dalton, Dunmore, Newton Twp., Scranton, South Abington Twp., Waverly Twp. and West Abington Twp. As part of the SAPA, the municipalities will adopt new zone ordinances with common definitions and zone districts. The association was founded in 2006 and has been working on updating its zoning regulations since 2017.
During a public hearing ahead of the council’s 7-0 vote on its SAPA regulation, landfill attorneys Jeffrey Belardi and Christopher Nestor, along with JP Mascaro’s in-house general counsel Bill Fox, asked the council to propose and further review the regulation , and established the constitutionality and legality of the proposed land use legislation. The lawyers have questioned two aspects of the regulation.
They dealt with the removal of “residual waste” from accepted types of waste for sanitary landfills, as well as the restriction that landfills can only accept rubbish from Lackawanna County unless approved by Dunmore’s Zoning Hearing Board. The language in which landfills cannot accept solid waste generated outside the county is also included in Dunmore’s current zoning ordinance of August 2000.
Under the current zoning of Dunmore, sanitary landfills can accept municipal solid waste and residual waste. According to the proposed regulation, however, only solid municipal waste is permitted. The state defines municipal waste as garbage, trash, industrial waste or office waste and other material from residential, municipal, commercial or institutional facilities and community activities. The Pennsylvania Department of the Environment defines residual waste as non-hazardous industrial waste, including waste generated by industrial, mining, and agricultural operations.
Both Fox and Nestor alleged that the restriction on waste available only in Lackawanna County violated the U.S. Constitution’s trade clause by placing a burden on interstate trade, and that the restriction on residual waste by state law on the Disposal of solid waste, which regulates landfills, is excluded.
Fox told the council that JP Mascaro & Sons, a solid waste and recycling service provider, has a large volume of business in northeastern Pennsylvania and some in New Jersey. “Keystone is critical to our company’s operations in this region.” The regulation could put them out of business, he said.
“I don’t know what Keystone is going to do, but I know JP Mascaro & Sons can’t just leave this and put us out of business here in northeast Pennsylvania,” said Fox.
Among his arguments, Nestor, who also argued that the ordinance violates the 14th Amendment’s equal treatment clause, said zoning where a landfill could be, but the proposed ordinance governs how it can be operated, which is beyond Dunmore’s authority.
“Adopting a regulation that is clearly unconstitutional exposes the district and you as individuals to potential liability,” Nestor told the council. “It needs to be checked.”
Pat Clark, a leader of the Friends of Lackawanna base anti-landfill expansion group, asked if the landfill or its partners had submitted comments to Scranton-Abington’s planners.
“We’re back in a place … where the garbage industry is threatening the neighborhood again,” said Clark, and later asked, “The day of a theoretical vote is the first time we’ve heard of the landfill or its industry.” Objections to this plan, is that correct? “
Mary Liz Donato, the Lackawanna County’s regional planning manager in attendance, said that to the best of their knowledge they had received no comments from the waste management company. Nestor replied that Monday was the first public hearing before the council.
Before the council voted, Councilor Janet Brier asked Donato for her opinion on the landfill’s challenges. Donato recommended checking the language as international trade could be an issue.
When asked after the meeting whether the landfill would take legal action against Dunmore if the council passed the ordinance, Belardi said that if the county tried to enforce it, “there would certainly be litigation.”
Dunmore must make a decision before June 30th if the SAPA program ends.