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CONSUMER INVESTMENT FUND v. SUPERVISORS SMITHFIELD TOWNSHIP (10/23/87)

decided: October 23, 1987.

CONSUMER INVESTMENT FUND, A PARTNERSHIP BY AND BETWEEN MICHAEL BERARDI, CECIL J. BUCHANAN AND HANDCRAFTED HOMES, INC., APPELLANTS
v.
SUPERVISORS OF SMITHFIELD TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Monroe County in the case of Consumer Investment Fund, a partnership by and between Michael Berardi, Cecil J. Buchanan and Handcrafted Homes, Inc. v. Supervisors of Smithfield Township, No. 429 Civil of 1986.

COUNSEL

Marshall E. Anders, Rosenblum & Anders, P.C., for appellant.

Donald G. Scheck, with him, Robert G. Williamson, Scanlon, Lewis & Williamson, for appellee.

Judges MacPhail and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 110 Pa. Commw. Page 414]

Consumer Investment Fund, a partnership by and between Michael Berardi, Cecil J. Buchanan and Handcrafted Homes, Inc. (Appellants) has appealed from a

[ 110 Pa. Commw. Page 415]

    decision of the Court of Common Pleas of Monroe County which dismissed Appellants' appeal from a decision of the Board of Supervisors (Board) of Smithfield Township (Township) for failure to exhaust administrative remedies. For the reasons discussed herein, we must respectfully reverse.

The relevant procedural history in this matter is as follows. Appellants, who are owners of certain property located in the Township applied to the Township's Sewage Enforcement Officer (SEO) for a permit to install a holding tank on their property. The holding tank permit was denied because appellants were unable to meet regulations of the Department of Environmental Resources (DER) with respect to isolation distances. More specifically, a well on neighboring property is located within one hundred feet of Appellants' proposed holding tank site and this according to the SEO is in violation of DER regulations.*fn1

Appellants appealed the SEO's determination to the Board and, after hearing, the Board affirmed the SEO's decision. The Board's decision was appealed to the court of common pleas and that court dismissed the appeal, concluding that Appellants' proper recourse was an appeal to the Environmental Hearing Board (EHB).*fn2

Thus, the sole issue presented for our determination is whether Appellants were required to appeal the Board's denial of their holding tank permit to the court of common pleas or to the EHB.

[ 110 Pa. Commw. Page 416]

Section 7(a) of the Pennsylvania Sewage Facilities Act (Act), Act of January 24, 1966, P.L. (1965) 1535, as amended, 35 P.S. ...


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