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HomeMy WebLinkAbout01-4361 MUNICIPAL LIENMONROE TOWNSHIP, Claimant VS. TIMOTHY R. AUGSBURGER and JANEL C. AUGSBURGER, Owners IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-4361 MUNICIPAL LIEN OPINION PURSUANT TO RULE 1925 The defendants in this matter, Timothy R. Augsburger and Janel C. Augsburger, have filed an appeal from our order of June 5, 2002, denying their petition to strike a municipal lien of Monroe Township. The municipal lien was assessed for sewer connection. The facts of the matter are as follows. The Augsburgers were served with a notice to connect to the Monroe Township Sewer System on April 16, 2001. The notice required connection within sixty days. In accordance with resolution number 00-5 of the Monroe Township Municipal Authority, the owner of an improved property is required to pay a tapping fee equal to the product of $3,000.00 times the number of dwelling units. In the case of the Augsburgers, the fee totaled $3,000.00. The Augsburgers failed to connect to the sewer system and, as a result, the Township filed a municipal lien for sewer connection on July 19, 2001. The Augsburgers thereafter filed a petition seeking dismissal of the municipal lien and also a request that a declaration of taking filed by the Township be stricken. There has since been a revocation of the declaration of taking. Therefore, the only issue for the court is whether the municipal lien for sewer connection should be stricken. The pertinent definitions regarding the issues in this case are set forth in Ordinance No. 2000-7 of Monroe Township or as follows: O1-4361 M.L.D. Improved Property shall mean any property within this Township upon which there is erected a structure intended for continuous or periodic habitation, occupancy or use by human beings or animals and from which structure Sanitary Sewage and/or Industrial Wastes shall be or may be discharged. Lateral shall mean that part of the Sewer System extending from a Sewer to the easement line or to the property line, as applicable, or if no such extension is provided, then "Lateral" shall mean that portion of, or place in, a Sewer that is provided for connection of any Building Sewer. Sewer shall mean any pipe or conduit constituting a part of the Sewer System, used or usable for sewage collection purposes. Sewer System shall mean, as of any particular time, all facilities located within this Township for collecting, pumping, transmitting, treating and disposing of Sanitary Sewage and/or Industrial Wastes within this Township, whether owned by the Authority, this Township or another municipality authority. Ordinance No. 2000-7 Article I Section 1.01. The portion of the same ordinance, giving rise to the instant litigation, is found in Article II: Section 2.01 .A. The owner of any Improved Property that is adjoining and adjacent to and whose principle building is within two hundred (200) feet from the Sewer System shall connect such Improved Property with and use such Sewer System, in such a manner as this Township and/or the Authority may require, within sixty (60) days after notice to such Owner from this Township to make such connection .... Id., Article II, Section 2.01.A. 2 O1-4361 M.L.D. DISCUSSION Monroe Township, a Second Class Township, has the authority to file a municipal claim or lien upon an individual's failure to pay the properly imposed connection fee to a sewer system. 53 P.S. § 7107. In this case, the Township filed the municipal lien with the Cumberland County Prothonotary' s Office after the Augsburgers failed to connect to the sewer system and pay the applicable fees. This action is within the authority of the Township if the Augsburgers are required to connect to the sewer system. Therefore, the issue in this case is whether the Augsburgers are required to connect to the sewer system under the statute. If they are, the lien should be enforced. The applicable portion of 53 P.S. § 67502 states: "[T]he board of supervisors may by ordinance require adjoining and adjacent property owners to connect with and use the sanitary sewer system, whether constructed by the township or a municipality authority or a joint sanitary sewer board." 53 P.S. § 67502. Accordingly, the Township may by ordinance and with no limitation on the distance between the sewer system and the principal building, require adjoining and adjacent property owners to connect to the sewer system. The statute does require the principal property to be adjoining or adjacent to, or within one hundred fifty feet from the sewer system in order for the Township to enter the property and construct the connection themselves. However, this is not an issue in the present case. The Township argues that the Augsburgers are required to connect to the sewer system, but it does not contend that it has the right to enter the property and construct the connection itself. Thus, the issue before the court is whether the Augsburger house is within two hundred feet of the sewer system. Another question is presented by the Augsburgers; namely, whether O1-4361 M.L.D. the distance of two hundred feet is the distance between the sewer lateral and the principle building or the sewer line and the principle building? While there is an argument that the lateral is part of the sewer system for the purposes of the ordinance, we need not, in the end, contend with this issue. This is because, even assuming that the main sewer line must come within the two hundred feet, this requirement has been met. Ronald E. Stephens, qualified as an expert in engineering and surveying for the purposes of this case, conducted measurements between the sewer system and the Augsburger home. According to his testimony, the main sewer line is one hundred ninety-eight feet and nine inches away from the Augsburger house. In order to determine the location of the main sewer line, Mr. Stephens used the "as built" drawings. An as built drawing is one which indicates the final location of the sewer system as placed in the ground. Nothing short of digging to expose the sewer line could resolve this case to a mathematical certainty. Nonetheless, we have no reason to doubt the accuracy of the as built drawings and will rely on them in reaching our conclusion in this case. In his statement of matters complained of on appeal, Mr. Augsburger raises issues in addition to the distance requirement for hook-up. These include: 3. Issues leading to the sewer system being placed in service for development purposes. 4. Environmental resolutions. [sic] pertaining to the fixings [sic] of said nitrate problems are at question. 5. A letter filed July 30, 2001 asking the Monroe Township Authorities for answers under the Pennsylvania Consolidated Statutes 2609 goes unanswered. 4 O1-4361 M.L.D. These issues were not raised at the hearing of this case and we, thus, did not have the opportunity to address them. We are satisfied that the instant appeal is not the proper point at which to raise these issues for the first time. August ,2002 Kevin A. Hess, J. James Bogar, Esquire For the Township Timothy R. Augsburger Janel C. Augsburger Owners :rlm