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Sugar Grove Township v. Byler

Commonwealth Court of Pennsylvania

July 20, 2018

Sugar Grove Township
v.
Iva H. Byler, Individually and as Trustee of the Little Ash Trust, Appellant

          Argued: May 9, 2018

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

          OPINION

          PATRICIA A. MCCULLOUGH, JUDGE JUDGES

         Iva H. Byler (Appellant) appeals from the April 13, 2017 order of the Court of Common Pleas of the Thirty-Seventh Judicial District, Warren County Branch (trial court), directing Appellant to remedy multiple violations of the Pennsylvania Sewage Facilities Act (Sewage Facilities Act)[1] and its accompanying regulations[2] with respect to privies and newly-built residences on her property, or face eviction therefrom, and to pay up to $100.00 per month towards fines and/or penalties stemming from these violations.

         Facts and Procedural History

         Appellant, a member of the Old Order Amish, resides at 1050 Wilson Road, Sugar Grove, Pennsylvania (the Property). The Property had been conveyed to Appellant and her husband by a recorded deed dated November 20, 1997. After the passing of her husband, Appellant executed a quit claim deed on September 17, 2010, transferring ownership of the Property to the Little Ash Trust, with her being the sole trustee. (Trial court op. at 2.)

         On October 18, 1993, Sugar Grove Township (Township) enacted Ordinance No. 93-10-1, which was subsequently repealed and replaced by Ordinance No. 12-11-06, hereinafter referred to as the Privy Ordinance. (Complaint at ¶ 8.) Section IV(A) of the Privy Ordinance states that "no privy shall be installed, utilized or otherwise placed in service by any owner or person until said owner or person has obtained a privy permit from the Township." Id. There are allegedly two privies on the Property, one of which was constructed prior to the enactment of the Privy Ordinance. The Property consists of three residences, all of which are served by the privies, but none of which have been granted a privy permit. Two of these residences were constructed after the adoption of the Privy Ordinance.[3] (Complaint at ¶9.)

         Complaint and Answer

          On August 13, 2015, the Township filed a complaint against Appellant alleging that she unlawfully made use of privies on the Property in violation of the Sewage Facilities Act regulations; failed to undertake soil and site suitability testing to determine if privies are an appropriate method for disposing of sewage on the Property as required by these regulations; failed to obtain the necessary permits as required by the Sewage Facilities Act; covered and occupied structures utilizing an on-lot sewage system without having the system inspected and approved by the Township in violation of the Sewage Facilities Act; created a nuisance under the Sewage Facilities Act by discharging untreated or partially treated sewage into the ground and/or waters of the Commonwealth; and failed to obtain the necessary permits, submit site plans, or obtain certificates of occupancy as required by the Uniform Construction Code (UCC) relating to the construction and occupation of the two later-built residences on the Property.[4](Complaint at ¶¶11, 13, 16, 19, 25-27, 29-41.) The Township had repeatedly sent Appellant letters and notices of the violations beginning in November 2012, but Appellant took no steps to bring the Property into compliance, thereby necessitating the filing of the complaint. (Complaint at ¶¶42-56.)

         The Township's complaint included five counts. In Count I, the Township sought injunctive relief to compel compliance with its Privy Ordinance. In Count II, the Township sought injunctive relief to compel compliance with the Sewage Facilities Act. In Count III, the Township sought abatement of the alleged nuisance under the Sewage Facilities Act. In Count IV, the Township sought relief under the UCC. Finally, in Count V, the Township sought injunctive relief to remove Appellant and any other residents from the Property. (Trial court op. at 1.)

         Appellant filed an answer essentially denying the material allegations of the Township's complaint. More specifically, Appellant alleged the following: the Property was served by one privy, which was installed by a prior owner of the Property well before enactment of the Privy Ordinance, thereby rendering said Ordinance inapplicable to her; neither the Privy Ordinance nor the UCC override her constitutionally protected religious rights as a member of the Old Order Amish; and the later-built structures were merely temporary dwellings. (Answer at ¶¶8-38.)

         Trial Court Hearings

         The trial court conducted two days of hearings, on October 27 and December 1, 2016, respectively. The Township presented the testimony of Kathie Liffner, its Secretary/Treasurer. Liffner testified as to her belief that the Property consists of three residences, the last being built between 2013 and 2015. She identified the Privy Ordinance enacted by the Township and noted that it requires a permit for a privy, with no exceptions for temporary dwellings or religious reasons. She indicated that Appellant has not obtained a privy permit for the Property. Liffner also identified a Township ordinance adopting the UCC, which requires a permit prior to constructing a building in the Township. She stated that Appellant was never issued a building permit for construction on the Property. She further identified invoices totaling $7, 791.18, $250.00, and $58.12, respectively, which represented the expenses incurred by the Township in pursuing the matter against Appellant and which the Township sought to recover as costs. Moreover, Liffner noted that the Township found Appellant to have six violations of the Sewage Facilities Act, with an ongoing weekly penalty which totaled $160, 000.00 as of the date of the hearing. (Reproduced Record (R.R.) at 13a-26a.)

         On cross-examination, Liffner could not state whether a privy ordinance existed prior to 1993, or whether Appellant had installed a privy since 2004 when she first became the Township's Secretary. Liffner could only testify that no privy permit was issued during that time. She noted that the Township opted to impose the maximum weekly penalty of $2, 500.00 for violations of the Sewage Facilities Act. As to the other two residences on the Property, Liffner indicated her belief that at least one of the residences was vacant as of the date of the hearing. (R.R. at 27a-38a.)

         The Township next presented the testimony of Edward Cardy, a building code administrator for, and vice president of, Building Inspection Underwriters (BIU), a company that acts as an administrator of the UCC for the Township. Cardy stated that inspectors working under him have been trying to secure building permits for structures and additions built on the Property. He testified that he ultimately issued a rule to show cause against Appellant regarding her violations of the UCC, to which she never responded. If an owner does not respond to a rule to show cause, he indicated that there is no legal right to occupy a structure, and any occupants must vacate the structure. He noted that no structure on the Property has been issued a certificate of occupancy and he specifically denied ever informing anyone that an occupancy permit was not required. Cardy noted that there are exemptions from the UCC requirements for temporary dwellings, but these do not apply to residences. He also noted that there are religious exemptions, but they only extend to specific portions of buildings, such as electrical facilities, plumbing facilities, and certain wood construction material. He testified that, even if certain exemptions applied, Appellant would still need a permit, but that Appellant never requested a permit or a religious exemption. (R.R. at 42a-57a.)

         On cross-examination, Cardy admitted that had Appellant's primary residence been constructed in 1997 or earlier, a building permit would not have been required as the UCC only came into effect in 2004. He admitted that he was unaware if either of Appellant's sons had applied for a temporary structure permit with the Township. He noted that neither of the later-built structures had been inspected, as a permit is a prerequisite to inspection. He also admitted that the exemptions apply to religious sects and the Amish are the only sect that he is aware of to which electrical, plumbing, and lumber exemptions apply. (R.R. at 58a-65a.)

         The Township next presented the testimony of John Burnell, a BUI building inspector who worked with the Township. Burnell described a shed as an accessory building, which does not require a building permit, that is under 1, 000 square feet and adjacent to a single-family dwelling. He noted that all residences, regardless of size, require a permit and inspection. He stated that he first came into contact with the Property in 2012 at the request of the Township because of new construction on site without a permit. He visited the Property in November 2012, observed what appeared to be a new addition to the back of the primary residence, and advised Appellant and one of her sons that permits and inspections were required for the same. He also noted what appeared to be a shed on the Property, which Appellant's son advised would be his residence. He stated that Appellant never sought a permit for the addition or her son's new residence. Burnell returned to the Property in February 2015 and observed what appeared to be another shed that Appellant's son stated would be a residence for his brother. He testified that Appellant never sought a permit or requested an exemption for the addition or any of the two new residences on the Property. Burnell identified a letter sent to Appellant in 2012 advising that a building permit was required for the addition, as well as subsequent letters and notices of violations and the rule to show cause order issued by his supervisor, Cardy. Burnell testified that Appellant made no effort to comply with the UCC requirements. (R.R. at 70a-89a.)

         On cross-examination, Burnell admitted that there was no provision for temporary dwellings in the residential section of the UCC. He noted that there were provisions for hunting or recreational camps but was unsure if there was any limitation on the number of days they could be occupied. He stated that he was familiar with Amish sheds, which are exempt under the UCC, and the lumber used to construct the same. He noted that he has seen sheds built on skids, similar to the two newly-built structures on the Property. (R.R. at 90a-98a.)

         The final witness presented by the Township at the October 27, 2016 hearing was Todd Fantaskey, the Township's sewage enforcement officer. Fantaskey testified that he visited the Property in February of 2015 after receiving a call from Liffner, the Township's secretary, regarding some new construction there, talked to Appellant, and took photographs of what he described as three residences. He proceeded to describe a report he prepared regarding his visit to the Property, which included the photographs he had taken there. He recalled Appellant informing him that at least one of the other two structures on the Property was merely for temporary use. Fantaskey also recalled Appellant informing him about what he interpreted to be the presence of water under pressure or piped water in the main residence and the disbursement of spent water through a pipe out back. He explained that a property that has water under pressure or piped water is required to have an on-lot septic system and that a privy is not an acceptable means of dealing with waste water. Additionally, he explained that it was unlawful to discharge sink water, known as gray water, onto the ground. He ultimately opined that the waste water system at the Property was in violation of the Sewage Facilities Act. (R.R. at 102a-18a.)

         Fantaskey noted that Appellant admitted that she did not have a building permit for her son's temporary residence or a permit for a privy. He followed up the visit with a notice of violation to Appellant dated February 19, 2015, but did not hear back from her. He returned to the Property in June of 2015 and took additional photographs, which show a privy to be unlawfully within 50 feet of one of the temporary residences and lacking a vent. Fantaskey testified that he was unaware of any exemptions in the Privy Ordinance for a temporary structure or for religious reasons. He noted that he drove by the Property a couple of days prior to the hearing and it appeared that one of the two temporary structures was vacant. He was aware that the Township had initiated the civil penalty process under the Sewage Facilities Act and believed that $2, 500.00 per week was in the middle of the allowed penalty range of between $500.00 and $5, 000.00 per week. He also noted his belief that the Township has installed a public sewage line in front of the Property that would require a connection by Appellant and ultimately prevent him from issuing her a waste water system permit. (R.R. at 121a-40a.)

         On cross-examination, Fantaskey stated that there were at least two privies on the Property but that he never inspected either. Even if one of the privies collected waste in a bucket and dumped it into another privy with a true holding tank, a scenario set forth by Appellant's counsel, Fantaskey opined that it would be a violation of the Sewage Facilities Act. He reiterated that one of the privies, next to the newer structure, was too close and not properly vented. He noted that the Privy Ordinance mandates a concrete vault underneath the structure and that the structure must be 50 feet from a dwelling and include a self-closing door and roof vent. He also reiterated that the Sewage Facilities Act does not include an exemption for religious reasons. He could not point to a definition in the Sewage Facilities Act for water under pressure but noted that water piped from a spring can maintain 30 pounds of pressure in certain situations, such as a spring located up slope. Finally, he noted that studies have revealed that discharged gray water from a house has a bacteria count as high as that of black water discharged from a septic tank. (R.R. at 158a-84a.)

         At the December 1, 2016 hearing, Appellant called as a witness Randy Brown, a former Township supervisor for 18 years and former member of the Sugar Grove Area Sewer Authority. He indicated that during his tenure the Township had enacted an ordinance setting forth a range of fines from $300.00 to $2, 500.00 but denied that the Township ever intended to impose an automatic maximum amount for violations. He stated that the amount of the fine was usually discussed by the board of supervisors and the solicitor. On cross-examination, Brown admitted that he played no part in the fines assessed against Appellant and that the amount of a fine would generally depend on the type of violation. (R.R. at 186a-97a.)

         Appellant next recalled Liffner to the stand. She testified that the Township's board of supervisors determined the amount of the fine to be assessed against Appellant. She denied that only Old Order Amish have been fined for violations related to privies but noted that they were the only people in the Township that utilized the same. She explained that the original fines related to the six violations of the Sewage Facilities Act and that the $2, 500.00 weekly amount represented a penalty for non-payment of the fines. She acknowledged that in her position as Township secretary she never advised Appellant of her right to appeal the violations/penalties and was unaware if the Township solicitor had so advised Appellant. (R.R. at 197a-209a.)

         On cross-examination by counsel for the Township, Liffner identified an August 20, 2015 letter from the Township solicitor to Appellant advising that a hearing would be held on September 15, 2015, with respect to her violations of the Sewage Facilities Act and cautioned that a potential civil penalty between $300.00 and $2, 500.00 per violation may be assessed, as well as a weekly assessment of $2, 500.00 for each week the violations continue unabated. She stated that Appellant never responded to this letter and did not appear at the hearing. She also identified a notice of assessment dated September 16, 2015, which advised Appellant of the imposition of a civil penalty of $15, 000.00 ($2, 500.00 for each of her six Sewage Facilities Act violations) and a continuing assessment of $2, 500.00 per week for each week the violations remain unabated. Liffner noted that this assessment also advised Appellant of her right to appeal within 30 days. Liffner next identified a demand for payment letter dated October 30, 2015, to which Appellant again did not respond. (R.R. at 209a-20a.)

         Appellant next presented the testimony of Henry Byler, one of Appellant's sons who had built and resided in one of the temporary residences on the Property. He identified the other temporary residence as belonging to his brother Marvin. He stated that he sought and was denied a temporary dwelling permit from the Township's building inspector. He stated that his privy had a bucket in which he and his wife would relieve themselves, and that he would then dump the waste in his mother's holding tank. On cross-examination, Mr. Byler testified that he and his wife had no water and bathed at his mother's house. He did not know where the water from the tub drain is discharged. He admitted to dumping cooking water and dish water onto the ground outside his temporary residence. (R.R. at 228a-37a.)

         Appellant then testified on her own behalf. She indicated that when she and her husband purchased the Property, the house and the privy were already there. She stated that her privy is regularly pumped and there is only one true privy on the Property. She confirmed that her son Henry moved out of the temporary residence on the Property, which was vacant at the time of hearing, and that another son, Marvin, lives in the other temporary residence with his wife. She described the building next to Marvin's residence as a portable, with no hole or vault dug in the ground underneath, and the waste therefrom being deposited in her privy. Appellant testified that she does have running water in her house through a one-inch pipe from a nearby spring that sits slightly above her residence. She stated that waste water from the house exits out the back of the house through a pipe, but she was unsure how far away from the house the actual discharge occurs. She indicated that she has no income and relies on her sons earnings from carpentry work for support. She also noted that she did not understand the letters/notices she received from the Township. (R.R. at 238a-55a.)

         On cross-examination, Appellant testified that she has a spigot in her house to access water. She stated that she believes the waste water from her house is transported through a pipe to an area behind her house that consists of brush and weeds. She admitted that this waste water is deposited onto the ground and not into a holding tank. While she recalled someone in uniform coming to the Property and handing her papers, she reiterated that she did not understand what these papers meant. She also admitted that she never obtained a building permit for her son's residences or a sewer permit. (R.R. at 256a-65a.)

         The Township then recalled Fantaskey as a rebuttal witness. He testified that piped water coming into a home with a valve or spigot to turn it on or off constituted water under pressure to which the provisions of the Sewage Facilities Act applied. He explained that waste water contains harmful bacteria and, if it is deposited onto the ground, it can be carried to other water sources. He indicated his belief that water that is fed by gravity can create water under pressure. On cross-examination, Fantaskey could not point to a section of the Sewage Facilities Act that characterizes water in a pipe as pressurized water. He explained that waste water is normally emptied into a septic tank and then discharged into a sand mound or in-ground seepage bed to treat any bacteria or pathogens before it is discharged into the ground. He also stated that many water wells in the Township had been contaminated with bacteria but could not recall if they were Amish wells. On re-direct examination, he noted that a privy cannot be used when water is piped into a home. On re-cross examination, he indicated his belief that a municipal sewer line runs in front of the Property and that Appellant would be required to connect her privy to that line and use an electric grinder pump to transport the sewage from the privy to the line. (R.R. at 268a-76a.)

         Trial Court Opinion and Order

         By order dated April 13, 2017, the trial court directed Appellant, within 30 days, to arrange with the Township to have all violations as found in its accompanying opinion remedied and addressed. If Appellant failed to make such arrangements or failed to act in good faith, the trial court directed the eviction of Appellant and any residents of the Property, with the assistance of the Sheriff, if necessary, until such time as the violations were resolved. Finally, the trial court directed Appellant to pay no more than $100.00 per month, which was the maximum amount that the trial court determined Appellant had the ability to pay, towards her outstanding fines/penalties.

          In an accompanying opinion, the trial court first addressed the Township's Privy Ordinance, noting that the same provided that "no privy shall be installed, utilized or otherwise placed in service by an owner or person until such owner or person has obtained a privy permit from the Township." (Trial court op. at 2) (referencing section IV of the Privy Ordinance). The trial court stated that the Property contains three residences, all of which were serviced by a privy, [5] but that the Township neither granted a permit for a privy, nor did it inspect and approve an on-lot sewage system servicing all three residences. Id. While Appellant's main residence and privy preceded adoption of the Privy Ordinance, the trial court noted that the other two residences were constructed after its adoption and were in fact occupied without any certificates of occupancy having been issued. Id. at 2-3.

         The trial court indicated that Appellant raised two arguments, the first being that the privy was installed on the Property prior to the purchase by herself and her husband, and the second being that the installation of privy pre-dated the Privy Ordinance. Id. at 3. The trial court noted that both of these arguments focused on the term "installed" but ignored the use of the term "utilized" in the Privy Ordinance and that a violation occurs if a person simply utilizes a privy without a permit. Id. However, the trial court further noted that the claimed violation of the Privy Ordinance was "complicated by the definition of privy found therein," which defines the same as "a watertight receptacle . . . which receives and retains sewage where water under pressure or piped waste water is not available." Id. at 4 (referencing section II(A) of the Privy Ordinance). The trial court seemingly concluded that since Appellant has available water under pressure or piped waste water at her residence, she could not by definition have a privy at the Property or otherwise be utilizing one without a permit in violation of the Privy Ordinance. Id.

         Despite this conclusion, the trial court proceeded to address the Sewage Facilities Act regulations with respect to privies. The trial court first referenced the definition of privy under section 71.63(f) of these regulations, which states that "[a] privy or chemical toilet is designed to receive sewage where there is no water under pressure and no piped wastewater." 25 Pa. Code §71.63(f). The trial court concluded, without explanation, that with such a definition, unlike the definition under the Privy Ordinance, "it is possible for a privy to be used (improperly) where water under pressure is available." (Trial court op. at 4.)

         The trial court then stated that there are a number of provisions establishing conditions for the lawful use of privies, including section 71.63(f)(1) of the regulations, 25 Pa. Code §71.63(f)(1), which mandates submission of a site plan and soil and site testing as conditions precedent for use of a privy, none of which occurred in this matter. Id. at 4-5. The trial court also referenced section 72.22 of the regulations, 25 Pa. Code §72.22, which prohibits a person from installing an on-lot sewage system or constructing or occupying a building served by such system without a permit, and noted that the residences occupied by Appellant's sons were constructed and serviced by a sewage system without this permit. Id. at 5. The trial court noted that a similar provision was found in section 7(a)(1) of the Sewage Facilities Act, which states, in pertinent part,

No person shall install, construct, or award a contract for construction, or alter, repair or connect to an individual sewage system or community sewage system or construct, or request bid proposals for construction, or install or occupy any building or structure for which an individual sewage system or community sewage system is to be installed without first obtaining a permit indicating that the site and the plans and specifications of ...

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