IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kevin J. Krushinski, : Petitioner : : v. : : Department of Environmental : Protection and Ralpho Township, : No C.D Respondents : Submitted: March 13, 2009 BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: July 8, 2009 Kevin J. Krushinski (Krushinski) petitions for review from an order of the Environmental Hearing Board (EHB) wherein the EHB dismissed Krushinski s appeal of the decision of the Pennsylvania Department of Environmental Protection (DEP) to deny his private request to order Ralpho Township (Township), Northumberland County, to revise its Official Sewage Facilities Plan. Pursuant to the Pennsylvania Sewage Facilities Act, 1 Krushinski filed a private request with DEP on January 5, 2007, and requested that DEP order Ralpho Township to revise their official [Act 537 Sewage Facilities] plan because their official plan is inadequate to meet... [his] sewage disposal needs. Private Request Letter, January 2, 2007, at 1. Specifically, Krushinski 1 Act of January 24, 1966, P.L. (1965) 1535, as amended, 35 P.S a, commonly referred to as Act 537.

2 requested that the Township s Act 537 Plan be revised to adequately meet... [his] basement living space sewage disposal needs. Private Request Letter at 1. DEP found that adequate sewer service was already available to Krushinski and denied his private request. DEP, Letter Denying Private Request, June 11, 2007, Exh. C-2, at 1. request to the EHB. On July 2, 2007, Krushinski, pro se, appealed DEP s denial of his Krushinski proceeded to hearing before the EHB. He stated he has a working shower and toilet on the upper two floors of his residence, which are connected into the main gravity line. Notes of Testimony (N.T.), July 7, 2008, at He is also able to convey his kitchen wastewater to the gravity public sewer. N.T. at 49. Krushinski explained, however, that he is unable to use a toilet, shower, floor drain, laundry sink, and washer located in his basement. N.T. at 49. Krushinski admitted that he has the ability to access it [a pipe in his ceiling that goes to the public sewer] from the basement.... N.T. at Krushinski s additional testimony focused on the design and construction of the sewer system. During Krushinski s testimony he offered the Domestic Wastewater Facilities Manual into evidence. Exh. No. 3. Citing to the Manual, Krushinski stated that [i]n general, sewers should be designed to allow for basement service of existing homes. N.T. at 26. Krushinski also stated that [a]s an alternative, an evaluation of existing houses may be performed to determine the most cost-effective solution for providing basement 2

3 service. N.T. at 26. Further, Krushinski explained that the sewer system was inadequate to meet my needs. So if it was designed inadequately, then it s not going to meet my needs. N.T. at 23. Curtis White (White), an Environmental Group Manager in water management in the sewage facilities planning section of DEP and a certified sewage enforcement officer, testified on behalf of the Commonwealth. White reviewed Krushinski s private request that DEP order [the]... Township to amend its 537 Plan to accommodate his needs in the basement sewer - - to allow gravity sewers to his basement area. N.T. at 79. White then reviewed the Component 3m Sewage Facilities Planning Module for Minor Act 537 dated May 14, 2002, for adequacy for public sewer service to Mr. Krushinski s residence. N.T. at 85; Exh. No. 15. White determined that the plan was adequate, that it was properly approved and that the plan did provide for public sewers to Mr. Krushinski s residence and through review of the correspondence determined that the plan was implemented as well. N.T. at 85. An Act 537 Plan does not specifically address how sewage will be conveyed from a structure to the public portion of the system. N.T. at 86. White testified that there are several options for conveying sewage from a residence to a municipal sewer: Well, one of the options of course is a lateral connected to the public sewers by gravity. Another one would be a 3

4 low-pressure grinder pump system that would pump and forcibly convey sewage into a gravity system. There s other types of systems on the market that are available for a variety of applications inside the building structure that could elevate the sewage to a height that would provide for gravities into a lateral. N.T. at 87. White explained that a number of pump systems are available for homeowners to connect lower levels of their structures to gravity sewers when the elevation difference doesn t allow [for a] gravity feed from the lower levels. N.T. at 90. White reviewed the information in Krushinski s private request and found no indication that he [Krushinski] would be unable to connect his basement if he so desired to the sewer line via a pump. N.T. at 89. White testified that DEP consider[s] pumping to be an adequate means for sewage disposal for a private residence. N.T. at 87. Dennis Lingenfelter (Lingenfelter), Vice President of Uni-Tec Consulting Engineers, testified on behalf of the Township. Lingenfelter designed the sewer system. The sewer system in general in Sunnyside/Overlook was designed for first floor service primarily due to economic considerations and all the every property in Sunnyside/Overlook did have first floor elevation capability. N.T. at Lingenfelter informed the EHB that the Act 537 Plan provided for adequate sewage disposal for Krushinski s residence because Krushinski could get his basement hooked up to this public sewer system as most people in that situation utilize either an internal pump inside their basement or they use an 4

5 outside pump and connect to the existing drain line that they have and pump it into the gravity sewer section. N.T. at 130. As to the cost of installing a pump, Lingenfelter was advised by a plumbing supplier it s somewhere between [$]500 and $1,500 for a pump assist in the basement to somewhere in the neighborhood of [$]2,000 to [$]3,000 for an outside pumping station not including installation. N.T. at In response to Krushinski s request that the sewer line be lowered to make the gravity sewer line available for the basement, Lingenfelter informed the Sunnyside/Overlook Sewer Authority that it was going to be in the [$]20[,000] to $25,000 range. N.T. at 131. Lingenfelter added that there s a total of four or five [properties] that are currently pumping and all hooked up without any issues putting in the pump.... N.T. at 133. The EHB made the following findings of fact: Findings of Fact Ralpho Township submitted a Component 3m Sewage Facilities Planning Module for Minor Act 537 Plan Update Revision to the Department on June 27, 2002 (Module) The Module indicated that the proposed project would provide sewer service to 160 EDU s in the Sunnyside/Overlook area of Ralpho Township, Northumberland County. Stip The Module also indicated that the proposed collection and conveyance facilities would consist of approximately 2,136 feet of 6 and 19,093 feet of 8 gravity sanitary sewer, 72 feet of 4 and 10,240 feet of 6 force main and a pump station. Stip. 3. 5

6 6. The Module went on to state that [l]ines will be laid in public road right of way where possible. Stip The Municipal Authority of Sunnyside/Overlook (MASO) made the decision to implement the second ranked alternative, providing sewage treatment at the Ralpho Township Municipal Authority Treatment Plant. Stip By letter dated December 10, 2002, the Department approved the Module. Stip The gravity sewer main was in fact constructed; however, not at a depth which would allow the basement of Mr. Krushinski s residence on Emworth Avenue to be connected to the sewer main by a gravity sewer lateral. Stip On December 1, 2006, Mr. Krushinski requested the Ralpho Township Board of Supervisors to revise its official [Act 537] plan to provide his residence on Emworth Avenue, including the basements, with full gravity sewer service. Stip On December 14, 2006, Ralpho Township denied Mr. Krushinski s request Mr. Krushinski filed a private request with the Department on January 5, 2007 requesting that the Department order Ralpho Township... revise its Act 537 Sewage Facilities Plan to adequately meet his basement living space sewage disposal needs by requiring the Township to provide full gravity sewer service to the Residence including the basement. Stip The first and second floor[s] of the Residence are hooked into the main gravity sewer line. Stip Mr. Krushinski has a working shower and toilet, and can convey kitchen wastewater from the Residence into the public sewer. N.T

7 15. Installing a pump to convey sewage into gravity sewer lines is an adequate means for sewage disposal for a private residence. N.T Krushinski has access to the sewer lateral from the basement in the Residence. N.T Krushinski never proved that he was unable to connect to the sewer lateral in his basement. 18. The connection of residences to the sewer main is controlled by local municipalities through ordinances. N.T The Department s Domestic Wastewater Facilities Manual is used for design standards of public sewage facilities in Water Quality Management Part II Permits, not sewage facilities planning and creating Act 537 Plans. N.T On June 11, 2007 the Department denied Mr. Krushinski s private request because the module does not provide that basements or lower levels of residential structures will be served by gravity sewers and Mr. Krushinski s basement can be served by a pumping system. N.T. 91; C-8. Environmental Hearing Board, Adjudication, October 24, 2008, Findings of Fact (F.F.) Nos at 3-5. The EHB concluded that Krushinski failed in... [his] burden of proving that the Official Plan was not being implemented or was inadequate to meet his sewage disposal needs for purposes of the Sewage Facilities Act and dismissed his appeal. Environmental Hearing Board, Adjudication, at 1. This appeal followed. 7

8 On appeal, 2 Krushinski contends that the Township failed to properly adopt and implement an Act 537 Plan and that the Township s Act 537 Plan was inadequate to meet his sewage disposal needs. 3 In response, the Township argues that Krushinski s appeal is frivolous and requests attorneys fees and costs. I. Whether The Township Failed To Properly Adopt And Implement Its Act 537 Plan Act 537 was enacted to ensure public health, safety and welfare of the citizens by providing for a technically competent, integrated and coordinated system of sanitary sewage disposal. Act 537, requires, in part, every municipality to adopt an official plan subject to approval by DEP. Act 537 also provides that an individual may make a private request to DEP to issue an order that directs a change to a municipality s official plan. In 2 This Court's review is limited to determining whether the EHB's findings of fact are supported by substantial evidence and whether constitutional violations or errors of law were committed. Board of Supervisors of Middle Paxton Township v. Department of Environmental Resources, 669 A.2d 418 (Pa. Cmwlth. 1995). 3 Krushinski s statement of questions preserved the following issues: 1. Whether the Respondent, the Pennsylvania Department of Environmental Protection erred in failing to approve the Appellant s private request and whether Respondent, Ralpho Township, failed to properly adopt and implement an Act 537 Sewage Facilities Plan. 2. Whether the Environmental Hearing Board Decision should be reversed when it found that the Petitioner failed in his burden of proving that the Official Plan was inadequate to meet his sewage disposal needs as required by the Sewage Facilities Act. 8

9 order for a private request to be approved by DEP it must be shown that the township is not implementing its plan or that the existing plan is inadequate to meet the resident s sewage disposal needs. 4 Yoskowitz v. Department of Environmental Protections, 2006 EHB 342, 350. The evidence established that on June 27, 2002, the Township submitted a Component 3m Sewage Facilities Planning Module for a Minor Act 537 Plan Update Revision to DEP. The Act 537 Plan indicated that the project would provide public sewer service to approximate 160 Equivalent Dwelling Units (EDU s), in the Sunnyside/Overlook area of the Township, where Krushinski s residence is located. The project contemplated a gravity sewer main constructed in the right-of-way in front of Krushinski s property. DEP approved the Act 537 Plan on December 10, The gravity sewer main proposed in the Township s Act 537 Plan was constructed as planned. Clearly, Krushinski s argument is without merit. II. Whether The Township s Act 537 Plan Is Inadequate To Meet Krushinski s Disposal Needs Krushinski contends that the Township s Act 537 Plan is inadequate to meet his sewage disposal needs because the sewer main was not constructed at 4 Section 5(b) of Act 537 establishes that: Any person who is a resident or legal or equitable property owner in a municipality may file a private request with the department requesting that the department order the municipality to revise its official plan if the resident or property owner can show that the official plan is not being implemented or is inadequate to meet the resident s or property owner s sewage disposal needs. 9

10 the proper depth and as a result, the basement of his residence cannot be serviced by a gravity flow lateral from his residence to the sewer main. 5 In the present controversy the Act 537 Plan provided for a sewer system that consisted of about four miles of gravity collection sewers, mostly eight-inch, some six-inch gravity sewers, two pumping stations and about... two miles of forced main. N.T. at 129. The Act 537 Plan required an eight-inch gravity sewer located in Emworth Avenue in front of the Krushinski property. N.T. at 129; Environmental Hearing Board, F.F. Nos. 4-6 at 3-4. Significantly, the sewer system was designed for first floor service due to economic considerations and the elevation capabilities of the affected properties. N.T. at Although the Act 537 Plan did not require the gravity sewer main to be constructed at a depth which would allow basements of the affected properties to be directly connected to the sewer main by a gravity sewer lateral, this in itself does not establish that the Act 537 Plan was inadequate. An Act 537 Plan need not specifically address how sewage will be conveyed from a structure to the public portion of the system. N.T. at 86. Rather, an Act 537 Plan must address the public portion of the sewage facilities. N.T. at 86. Therefore, the Act 537 Plan needs to be no more than adequate with respect to a particular resident s sewage disposal 5 Also, Krushinski failed to indicate which particular sections of the Township s Act 537 plan were violated or not followed. Krushinski simply argues that the Township s Act 537 Plan is inadequate because it was never designed to be accessible to meet... [his] sewage disposal needs. Private Request Letter at 2. His lower level is [n]ot [a]ccessible to Ralpho Township s plan which was designed and fully justified as a gravity sewer system. Private Request Letter at 3. 10

11 needs. James Gilmore v. Department of Environmental Protection, et al., 206 EHB 679, 690. The resident need only have feasible sewage disposal alternatives. Id. Here, Krushinski has sewer service to his residence. Two floors of his residence were connected to the gravity sewer line that extends to the sewer main. N.T. at The gravity sewer line serviced both a bathroom and the kitchen in his residence. N.T. at Although the lower level of Krushinski s residence was not directly serviced by a gravity flow lateral to the sewer main, as with the upper levels, Krushinski and other residents similarly situated are not without a remedy. Krushinski has the option of purchasing and installing a grinder pump 6 to connect the basement of his residence into the existing gravity sewer line. N.T. at 130. This is not extraordinary. In fact, several residents in the Sunnyside/Overlook area pursued this option and installed grinder pumps without problems. N.T. at 133. Here, use of the grinder pump was a feasible sewage disposal alternative for Krushinski because there was no evidence to suggest that disposal from his basement cannot be remedied through the installation of a grinder pump. N.T. at 6 A grinder pump system forcibly conveys sewage into an existing gravity system and is a feasible option for conveying sewage from a residence to a public sewer system. N.T. at 87. Specifically, a grinder pump system provides access to an existing gravity lateral line by grinding up wastewater from a residence and pumping it into a public sewer system. Installation of a pump costs approximately $ to $3,000, whereas, lowering the existing sewer line to make the gravity sewer line available for basement service cost approximately $20,000 to $25,000. N.T. at 131. Krushinski does not argue that the cost of the pump was exorbitant or that he was unable to afford its installation. 11

12 89. Unquestionably, Krushinski has access to the sewer lateral from his basement and it may be serviced by a pumping system. Alternatively, Krushinski contends that he should be able to continue to use his safe and operational existing drain field to accommodate his sewage disposal needs for wastewater generated in the basement of his residence. Krushinski Brief at 14. This Court does not agree. The Township has a mandatory sewer connection ordinance that provides that no septic system can be used and maintained on any improved property that has been connected to a sewer. Ralpho Township Zoning Ordinance 202(4). Additionally, although Krushinski asserts that the drain field is safe and operational this fact remains disputed. A January 1993 site investigation found that there was a surface malfunction of the septic system located on Krushinski s property. There is no evidence of record to establish that the malfunction was repaired. An operational sewage system is already available to Krushinski and he can readily connect his basement to that system. Again, Krushinski s arguments are without merit. Therefore, DEP properly denied Krushinski s private request and the EHB s decision properly determined that the Township s Act 537 Plan is adequate. III. Whether The Township Is Entitled To An Award Of Reasonable Attorneys Fees And Costs The Township contends in its brief that it is entitled to an award of reasonable attorneys fees and costs for Krushinski s frivolous appeal pursuant to 12

13 Pa.R.A.P The Township also contends that Krushinski s conduct throughout the pendency of the litigation was dilatory, arbitrary and vexatious. 42 Pa. C.S It is only necessary to find one factor present to award attorneys fees. Reasonable counsel fees may be awarded if this Court determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious. Pa.R.A.P Pennsylvania Rules of Appellate Procedure (Rule 2744) provides for counsel fees and states in relevant part: In addition to other costs allowable by general rule or Act of Assembly, an appellate court may award as further costs damages as may be just, including (1) a reasonable counsel fee and (2) damages for delay.... if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious. Moreover, this Court has held that a frivolous appeal implies that no justifiable question has been presented and that the appeal is readily recognizable as devoid of 7 This Court notes that Pa.R.A.P establishes a procedure for requesting reimbursement for costs recognized in Pa.R.A.P 2744 after a final decision is entered. However, the Township has chosen to request costs pursuant Pa.R.A.P 2744 in its brief. This Court has previously treated a request for counsel fees based on frivolity as if it were an application when made as part of the requesting party s brief on the merits. Accordingly, this Court will dispose of the Township s request as part of the disposition of the merits of this case. See Savini v. Department of Transportation, Bureau of Driver Licensing, 624 A.2d 696 (Pa. Cmwlth. 1993). 13

14 merit in that there is little prospect of success. Hewitt v. Commonwealth, 541 A.2d 1183, (Pa. Cmwlth. 1988), allocator denied, 520 Pa. 620, 554 A.2d 511 (1989). Krushinski has consistently argued throughout this tortuous appeal process that the design of the sewer system was inadequate without directing this Court to any case law or statutory authority. Again, the evidence established that there was adequate service to Krushinski s property. Therefore, this Court is constrained to award attorneys fees and costs to the Township on the basis that Krushinski pursued an appeal and submitted a brief that is frivolous. 8 Accordingly, this Court affirms and directs the Township to file a bill of costs within fourteen (14) days that calculates the amount of reasonable attorneys fees and costs due and owed from the date the EHB dismissed Krushinski s appeal. Thereafter, Krushinski may file exceptions to the bill of costs within fourteen (14) days. BERNARD L. McGINLEY, Judge 8 Although not relevant to this proceeding, the Township argues that Krushinski acknowledged that he engaged in dilatory conduct because he admitted before the EHB that he pursued the hearing to delay a collateral criminal matter based on the outcome of this [EHB] hearing. N.T. at 55. Because this Court has already determined that the appeal was frivolous this Court need not consider this additional argument in support of awarding attorneys fee. 14

15 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kevin J. Krushinski, : Petitioner : : v. : : Department of Environmental : Protection and Ralpho Township, : No C.D Respondents : O R D E R AND NOW, this 8th day of July, 2009, the order of the Environmental Hearing Board in the above captioned matter is affirmed. Ralpho Township is directed to submit a bill of reasonable costs and fees due and owed from October 24, 2008, to this Court within fourteen (14) days. Thereafter, Kevin J. Krushinski may file exceptions to the bill of costs within fourteen (14) days. BERNARD L. McGINLEY, Judge