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F. & T. CONSTRUCTION COMPANY v. DEPARTMENT ENVIRONMENTAL RESOURCES (07/11/72)

decided: July 11, 1972.

F. & T. CONSTRUCTION COMPANY, INC.
v.
DEPARTMENT OF ENVIRONMENTAL RESOURCES



Appeal from the Order of the Department of Environmental Resources in case of In the Matter of: F. & T. Construction Company, Inc., Borough of Brookhaven, Delaware County, No. 71-095.

COUNSEL

Joseph P. Mylotte, with him Stephen J. McEwen, Jr., and McEwen, McEwen & Mylotte, for appellant.

Elissa Parker, Assistant Attorney General, for appellee.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Blatt.

Author: Blatt

[ 6 Pa. Commw. Page 60]

The appellant is planning to develop a tract of approximately 53 acres in the Borough of Brookhaven (Borough), Delaware County, by constructing 538 apartment units thereon. It entered into an agreement to purchase the land, and it engaged the services of architects, engineers and attorneys, incurring expenses amounting to $76,400.00. It was estimated that the total cost of the development would be approximately $7,000,000. The appellant received formal approval of its subdivision plans from the Borough on February 9, 1971, but certain conditions pertaining to access roads and to water and sewer grades were attached to the approval and not met until May 13, 1971. The appellant also submitted its plans and received approval of them from the Pennsylvania Department of Labor and Industry on July 16, 1971, and from the Pennsylvania Department of Transportation on September 16, 1971.

On June 2, 1971, the Borough Mayor was notified by the Department of Environmental Resources (Department) that no additional discharge into the Borough's

[ 6 Pa. Commw. Page 61]

    sewer system would be permitted without the approval of the Department. The Borough's sewer system is connected to and part of that of the City of Chester, whose treatment facilities the Department had found to be both organically and hydraulically overloaded. A ban on additional discharge was therefore placed on the entire system, but an exception was permitted for new construction for which building permits had been issued prior to June 2, 1971, the date of the Departmental order.

The appellant, not having filed an application for a building permit prior to June 2, 1971, wrote a letter to the Department's Regional Sanitary Engineer on July 23, 1971, requesting an exception to the June 2 ban, and said that this exception was mandated because of the large expenditures made and because the date cut-off criterion, i.e., the issuance of a building permit, was inequitable. The requested exception was denied, and the appellant appealed to the Department. Following a hearing, the Department handed down its adjudication, which again denied the exception. The appellant thereafter appealed to this Court, alleging that insufficient evidence had been introduced to provide a valid basis for the Departmental ban, and that the date of issuance of a building permit was an unreasonable and discriminatory criterion for permitting an exception to the ban on additional discharge.

The Department is subject to the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, 71 P.S. § 1710.1 et seq., wherein Section 44, 71 P.S. § 1710.44 provides that this Court shall affirm an adjudication: "unless it shall find that the same is in violation of the constitutional rights of the appellant, or is not in accordance with law . . . or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence." Our

[ 6 Pa. Commw. Page 62]

    scope of review in an appeal from the Department is thus to determine whether or not there has been a manifest abuse of discretion or an arbitrary execution of the Department's duties. Sierra Club v. Sanitary Water Board, 3 Pa. Commonwealth Ct. 110, 281 A.2d 256 (1971). Upon a careful review of the appellant's allegations, we must conclude that there has been no such abuse of ...


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