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HomeMy WebLinkAbout2023-00611 IN THE MATTER OF: : IN THE COURT OF COMMON PLEAS OF APPEAL OF KENNETH : CUMBERLAND COUNTY, PENNSYLVANIA BOLINGER : RE: 631 LOWTHER STREET : CIVIL ACTION (LAND USE APPEAL) SEPTIC TANK : REPLACEMENT ORDER : NO. 2023-00611 CIVIL TERM IN RE: LAND USE APPEAL BEFORE HYAMS, J. OPINION and ORDER OF COURT HYAMS, J., December 3, 2024. In this land use appeal, a property owner (Appellant) has appealed from a decision 12 of the governing body of a borough (Appellee), following a hearing, which affirmed an 3 order of the borough’s sewage enforcement officer that directed the owner to replace a 4 septic tank on the property.As expressed in Appellant’s brief in support of the appeal, the issue being pursued by Appellant is: WHETHER LEMOYNE BOROUGH ABUSED ITS DISCRETION IN DENYING THE WAIVER LEMOYNE BOROUGH, IN PART WHERE THE BOROUGH COUNCIL PRESIDENT IMPROPERLY ADMITTED EXPERT TESTIMONY WITHOUT HAVING THE EXPERT PRESENT OR HIS REPORT FOR INSPECTION AND CROSS-EXAMINATION BY THE APPELLANT, AND WHERE THE REPORT AND 5 OPINION OF THE EXPERT WAS NOT PART OF THE RECORD. No additional evidence was received by the court, and the matter was argued on November 13, 2024. For the reasons stated in this opinion, Appellant’s appeal will be 1 Decision of the Borough Council, dated January 10, 2023, Submission of Record of Public Hearing of the Borough of Lemoyne, Document 10, filed September 30, 2024 (hereinafter Decision of the Borough Council). 2 Transcript of Proceedings \[of hearing held November 17, 2022\], Submission of Record of Public Hearing of the Borough of Lemoyne, Document 6, filed September 30, 2024 (hereinafter Lemoyne Borough Council Hearing). 3 Email from Bob Oakes to Kenneth Bolinger, dated September 30, 2022, Submission of Record of Public Hearing of the Borough of Lemoyne, Document 1, filed September 30, 2024 (hereinafter Order of Sewage Enforcement Officer). 4 Notice of Appeal, filed January 25, 2023. 5 Brief in Support of Appeal, filed by Appellant, March 31, 2023. sustained to the extent that Appellee’s decision will be vacated and the case remanded to the borough council for a further hearing. STATEMENT OF FACTS Appellant Kenneth Bolinger is the owner of a residential rental property in Appellee Borough of Lemoyne, which is serviced by a 500-gallon on-site liquid septic 6 tank. Appellee’s ordinance respecting sewage facilities provides that \[n\]o person shall install, construct or request bid proposals for construction, or alter an on-lot sewage system or community sewage system, or construct or request bid proposals for construction, or install or occupy any building or structure for which on on-lot 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 such system are in compliance with the provisions of the Pennsylvania Sewage Facilities Act and the standards adopted pursuant to that Act. 7 Lemoyne Borough Code, Chapter 420, Article III, §420-34(A) (emphasis added). Under 25 Pa. Code §73.31(a)(1), “\[t\]he minimum liquid septic tank capacity for any installation is 900 gallons.” By a notice dated September 30, 2022, Appellee’s sewage enforcement officer ordered Appellant to replace the current septic tank with one compliant with the above standard, providing in the notice his understanding of the history of the matter to that date: Good morning Mr. Bolinger, On September 15, 2022 the was \[sic\] a pumping and inspection of the on-lot septic system located at 631 Lowther Street and the system did not pass inspection because the outlet baffle was malfunctioning. That same night there was a motion brought before Borough Council for a waiver request to allow the continued use of the property as a rental with an on-lot septic system. Council approved that waiver request and approved the repair contingent upon no other repairs are necessary. On September 28, 2022 I found that work had already been started before notification to Borough personnel. Upon inspection of the now opened septic tank, it was found to have multiple other deficiencies. Cracks in the top of the tank extending more than half the 6 N.T. 8, Lemoyne Borough Council Hearing; see Decision of the Borough Council, Findings of Fact, ¶16. 7 Submission of Record of Public Hearing of the Borough of Lemoyne, Document 9, filed September 30, 2024. 2 length of the tank and a decent size chunk missing from the side of the tank near the outlet baffle with a large crack extending down the side from missing piece. This new information was then examined by Borough personnel, council members and the Borough engineer. Given the multiple deficiencies along with the capacity of the tank not meeting the current requirements, you are now required to have the existing tank completely removed and have a new septic tank installed following all standards given in Pennsylvania Code Chapter 73. This work is expected to still be completed withing \[sic\] the 60 day time period set forth by Borough Council on September 15, 2022. A permit will have to be completed for the replacement of the tank and appropriate fees will have to be paid before work can commence. Permit can be acquired with me, and fees should be paid at the Borough Office. To prevent any accidents or injuries, all excavated areas should have appropriate safety measures used until final restoration is made. 8 If you have any questions feel free to reply to this email. From this order, Appellant filed an appeal to Appellee borough council, by a letter dated October 21, 2022, from his attorney, stating: The reason for the appeal are \[sic\] that the septic tank is not malfunctioning and Ken Bolinger has an engineer report stating that there is no need to replace to \[sic\] the 9 septic tank under the applicable DEP rules and regulations. A hearing was held by Appellee borough council on Appellant’s appeal from the 10 order of the sewage enforcement officer on November 17, 2022. At the hearing, 11 Appellant presented the testimony of one witness, in the person of himself, as well as a 12 copy of his engineer’s report, dated October 4, 2022, referenced in his appeal, inter alia. 13 Testimony was also received from the borough’s sewage enforcement officer. 14 Appellant testified that he had owned the property for over twelve years,that the 15 house on the property had been built in the 1960s, that the septic system had never 8 Order of Sewage Enforcement Officer. 9 Letter, dated October 21, 2022, from John M. Ogden, Esq., to Michael J. Cassidy, Esq., et al., Submission of Public Hearing of the Borough of Lemoyne, Document 5, filed September 30, 2024. 10 N.T. 1-54, Lemoyne Borough Council Hearing. 11 N.T. 8-47, Lemoyne Borough Council Hearing. 12 N.T. 17-18, Lemoyne Borough Council Hearing; Engineer’s Certification, dated October 4, 2022, Submission of Record of Public Hearing of the Borough of Lemoyne, Document 3, filed September 30, 2024 (hereinafter Report of Appellant’s Engineer). 13 N.T. 28 et seq., Lemoyne Borough Council Hearing. 14 N.T. 8, Lemoyne Borough Council Hearing. 3 16 failed to his knowledge, that an examination of the baffle in question following the 17 failed inspection revealed that “\[t\]here was really nothing broken” and “\[i\]t just wasn’t 18 tight together,” that a “little stress crack” would be quickly sealable as recommended by 19 his engineer, and that “a piece of concrete . . . got broken off that \[he\] busted out on the 20 top” in the process of accessing the tank. The report of Appellant’s engineer, who as noted visited the site after the sewage 21 enforcement officer issued the order appealed from, stated: On October 4, 2022, I conducted an inspection of the precast concrete septic tank and lid in the front yard of the single family dwelling located at \[631 Lowther Street in Lemoyne Borough\]. . . . The attached photo reveals a hairline crack in the lid and the upper right hand corner which is at the southeast corner running east/west. The crack is minor in nature and has no negative impact upon the structural integrity of the tank or lid. I would recommend sealing the crack with a non-shrink epoxy sealant to prevent intrusion of water and sealing the metal steel plate to the concrete lid with a bitumastic caulk . . . I hereby certify, that based upon my personal inspection conducted 10/04/2022, that the concrete tank and lid are structurally adequate to accommodate the applied loads associated with the 22 location of the tank . . . . . The testimony of the borough’s sewage enforcement officer included pictures of 23 the tank, and the president of the council noted the sewage enforcement officer’s account of defects observed in the tank, as related in his notice dated September 30, 24 2022. 15 N.T. 9, Lemoyne Borough Council Hearing. 16 N.T. 13-14, Lemoyne Borough Council Hearing. 17 N.T. 12, Lemoyne Borough Council Hearing. 18 N.T. 13, Lemoyne Borough Council Hearing. 19 N.T. 18-19, Lemoyne Borough Council Hearing. 20 N.T. 30, Lemoyne Borough Council Hearing. 21 N.T. 34, Lemoyne Borough Council Hearing. 22 Report of Appellant’s Engineer, at 1. 23 N.T. 30 et seq., Lemoyne Borough Council Hearing. 24 N.T. 38, Lemoyne Borough Council Hearing. 4 On the issue of whether Appellant’s commencement of the remedial work without notifying borough officials was consistent with the terms of his conditional waiver, Appellant testified that he had been “told that \[the sewage enforcement officer\] had to come and inspect it after it was completed without the inspection cover being on. He 25 wanted to see how I repaired it.” The sewage enforcement officer, however, testified that the Council allowed for him to—allowed the possibility of him repairing this\[,\] contingent that there were no more repairs. And that is why they wanted me onsite. Because if there were more repairs to be made, then he wouldn’t repair what is there, 26 spend the money or time, if he is going to have to replace the tank regardless. Toward the end of the hearing the following exchanges occurred involving the president of the borough council (Gale Gallo), the borough manager (Cindy Foster), another council member (Jesse Monoski), and Appellant’s attorney (John M. Ogden, Esq.): PRESIDENT GALLO: Jesse? MR. MONOSKI: Just, I guess, a question for possibly the Borough Manager or \[the sewage enforcement officer\] as well. In the inspection process for the septic tank, do we also have the Borough Engineer inspect or is that solely the responsibility of the \[sewage enforcement officer\]? MS. FOSTER: It’s the SEO’s responsibility. MR. MONOSKI: And I ask just to know if we’ve had multiple Engineers inspect or just \[Appellant’s\] Engineer was the only official who inspected it as a Certified Engineer? PRESIDENT GALLO: Can I address that? Can I answer that question? MR. MONOSKI: Sure. PRESIDENT GALLO: I will say that our Borough Engineer also reviewed the situation, reviewed the photos, reviewed the comments, reviewed the other Engineer’s report and Mr. Knouse did concur with our Sewage Enforcement Officer’s recommendation. MR. MONOSKI: Okay. PRESIDENT GALLO: There was an email to that effect. MR. MONOSKI: That’s what I— 25 N.T. 33, Lemoyne Borough Council Hearing. 26 N.T. 37, Lemoyne Borough Council Hearing. 5 PRESIDENT GALLO:Yes. MR. MONOSKI: I may have missed it. My apologies. That’s what I wanted to understand. We had conflicting reports from two different Engineers and it appears that’s the case. Okay. That’s all. Thank you. PRESIDENT GALLO: Uh-huh. Anyone else? All right. There being no additional questions or discussion— MR. OGDEN: Can I just say one thing about that? We haven’t—we haven’t—we were not aware that the Borough Engineer issued such a report and we would ask for a copy of it so that we can delve into it a little bit. PRESIDENT GALLO: It was just an e-mail, sir. MR. OGDEN: Okay. Well, I know. But if the e-mail is affecting your decision, we feel like we should be able to see it. PRESIDENT GALLO: Very good. Thank you. All right. There being no other additional questions or discussion by Borough Council, we have a motion and we have a second to approve the request for Mr. Bolinger to waive the Sewage Enforcement 27 Officer’s Order to replace the septic tank . . . . 28 The motion to approve Appellant’s request failed by a vote of four to two.It was followed by a formal written decision dated January 10, 2023. The formal decision found, inter alia, that: 12. \[On August 24, 2022, t\]he SEO informed Mr. Bolinger that the property was due for an inspection. Additionally, because the property was being used for rental purposes, Mr. Bolinger was violating Chapter 394, Section 506.1 of the Lemoyne Borough Code, which requires rental properties to be connected to the sanitary sewer 29 system.\[\] 13. The SEO informed Mr. Bolinger that Mr. Bolinger would need to appear before the Borough Council to request a waiver if he wished to continue renting the property. 14. On August 25, 2022, the Dillsburg Septic company contacted the SEO to inform him that an inspection of the property’s septic system was set for September 15, 2022 at 7:30 am. 15. During the September 15, 2022 inspection, Dillsburg Septic and the SEO discovered a broken baffle in the septic tank. The property thus failed the inspection. 16. The SEO then informed Mr. Bolinger that a 900-gallon tank ought to be installed at the property because Mr. Bolinger has added a third bedroom to the property. The SEO told Mr. Bolinger that under Section 73.31 of the Pennsylvania Code, a 900- 27 N.T. 50-51, Lemoyne Borough Council Hearing. 28 N.T. 51-53, Lemoyne Borough Council Hearing. 29 It shoud be noted, however, that such a connection was not available at that time, nor expected to be available in the near future. N.Y. 43-44, Lemoyne Borough Council Hearing. 6 gallon tank was the minimum needed for proper flow of the wastewater from the property. The existing 500-gallon tank was insufficient. 17. On September 15, 2022, Mr. Bolinger appeared before the Borough Council and requested a waiver for the property, despite the presence of the broken baffle. 18. During the September 15, 2022 hearing, the Borough Council granted Mr. Bolinger’s waiver request. Mr. Bolinger was permitted to make the necessary repairs to the septic system within sixty (60) days. 19. The Council also informed Mr. Bolinger that the SEO had to be at the property during the repairs. Additionally, the waiver for the broken baffle was contingent upon no other repairs being needed for the septic tank. The Council voted to approve the waiver, with President Gallo opposing. 20. On September 28, 2022, the SEO drove by the property and noticed that work was being done even though the SEO had not received prior notice of such work, as required by the Borough Council. 21. Mr. Bolinger stated that he did not wish to waste the SEO’s time, and that he would have informed the SEO after the work was completed. 22. While at the property on September 28, 2022, the SEO observed multiple cracks in the tank lid and missing concrete on the side of the tank near the top. Mr. Bolinger was told by the SEO to cease work and to wait for the Borough Council’s direction. 23. On September 29, 2022, the Borough Manager informed President Gallo, who directed that the SEO should inform Mr. Bolinger that the existing septic tank must be replaced with a 900-gallon tank, as required by Section 73.31 of the Pennsylvania Code. 24. The Borough Manager informed the members of the Council of President 30 Gallo’s decision, and there was broad support for the chosen course of action. Appellee’s written decision concluded that, “\[f\]or the foregoing reasons, Mr. 31 Bolinger’s appeal of the SEO’s order is DENIED.” The decision did not mention the borough engineer’s purported concurrence with the sewage enforcement officer’s determination, and expressed the view that “Mr. Bolinger was given a full opportunity to be heard, was ably represented by counsel, and was permitted to cross-examine witnesses 32 testifying on behalf of the Borough.” As noted, oral argument on Appellant’s appeal from the borough’s decision was held on November 13, 2024. At the argument, Appellant’s attorney argued (a) that the 30 Decision of the Borough Council, Findings of Fact, ¶¶12-24. 31 Decision of the Borough Council, Decision of the Borough Council, at 6. 32 Decision of the Borough Council, Decision of the Borough Council, at 6. 7 borough council had committed an error of law and abuse of discretion by its consideration of an opinion of the borough engineer that had not been admitted into evidence or permitted to be seen or challenged by Appellant, and (b) that the evidence did not support a conclusion that repairs to the system beyond those associated with the baffle had been required. Appellee’s counsel argued, to the contrary, that the evidence at the hearing, including that of Appellant’s own expert, was sufficient to support a reasonable conclusion that additional repairs had been needed. DISCUSSION Statement of law. “In a land use appeal \[from a decision by a municipality’s governing body\], where a full and complete record was made before the \[municipality\] and the trial court \[takes\] no additional evidence,” the scope of review “is limited to determining whether the \[governing body\] committed a manifest abuse of discretion or an error of law.” Wolter v. Board of Supervisors of Tredyffrin Township, 828 A.2d 1160, 1162 n.4 (Pa. Cmwlth. 2003) (emphasis added). An abuse of discretion occurs when the fact-finder “makes material findings of fact not supported by substantial evidence. . . . Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. . . .” Cogan Properties, LLC v. East Union Township Zoning Hearing Board, 318 A.3d 981, 985 n.7 (Pa. Cmwlth. 2024) (citations omitted). In land use cases, it is axiomatic that “\[a\] fair trial before a fair tribunal is a basic and fundamental due process requirement.” Penn Street, L.P. v. East Lampeter Township Zoning Hearing Bd., 84 A.3d 1114, 1145 (Pa. Cmwlth. 2014), citing Joseph v. N. Whitehall Twp. Bd. of Supervisors, 16 A.3d 1209 (Pa. Cmwlth. 2011). Thus, where a municipal tribunal is acting in an adjudicatory role it must abide by due process standards . . . . Kuszyk v. Zoning Hearing Bd. of Amity Twp., 834 A.2d 661 (Pa. Cmwlth. 2003). A showing of actual bias is unnecessary in order to assert a cognizable due process claim; the mere potential for bias or the appearance of non-objectivity may be sufficient to constitute a violation of that right. Id. Id. at 1145-46. 8 Consideration by the fact-finder of a report dehors the record is not compatible with such standards. See Commonwealth v. ex rel. Valentine v. Strongel, 246 Pa. Super. 466, 371 A.2d 931 (1977) (case remanded for new trial where report dehors the proper record considered by lower court). Relatedly, \[t\]he right of a litigant to in-court presentation of evidence is essential to due process: “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses. Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (citing extensive authority).” 231 Pa.Super. at 463, 332 A.2d at 192. Id. at 470, 371 A.2d at 933; see also City of Philadelphia v. Fraternal Order of Police Lodge No. 5 (Breary), 604 Pa. 267, 985 A.2d 1259 (2009). In this regard, “a party’s right to see adverse evidence and be afforded an opportunity to rebut such evidence” has been described as a matter of “elementary 33 fairness.” Application of law to facts. In this case, based upon the record below, it can not be said with any confidence that the expert opinion of Appellee’s engineer in support the order of the sewage officer from which Appellant appealed did not factor into the adverse decision of the board, and it is equally clear that Appellant was not afforded an opportunity, which he requested, to see and rebut that evidence. Pursuant to the foregoing principles of law, the decision of Appellee from which Appellant has appealed to this court will be vacated and the case remanded for a further hearing at which Appellant is to be afforded the opportunity to see the full contents of any communication of the borough engineer regarding the matter at issue with, or shared, directly or indirectly, with, any borough employee, council member, official, consultant, contractor, or other person or entity, and is to be afforded the opportunity to rebut the same. It will also be helpful to the court, if the case is ultimately returned to it, to include in the certified record any written memorialization—e.g., minutes—of the terms of the 33 Grace Drilling Company v. Board of Review of Industrial Commission of Utah, 776 P.2d 63, 70 (Utah Ct. App. 1989). 9 waiver said to have been provided to Appellant at the borough council’s meeting on September 15, 2022. ORDER OF COURT rd AND NOW, this 3day of December, 2024, upon consideration of the Notice of Appeal filed January 25, 2023, by Appellant Kenneth Bolinger from the decision of the borough council of Appellee Lemoyne Borough dated January 10, 2023, denying Appellant’s appeal from an order of the borough’s sewage enforcement officer, and for the reasons stated in the accompanying opinion, the appeal is sustained to the extent that Appellee’s decision is vacated and the case remanded to Appellee’s borough council for a further hearing on Appellant’s appeal from the sewage officer’s order, to be conducted in accordance with the court’s opinion. BY THE COURT, ________________ Carrie E. Hyams, J. 10