Cass Twp. v. Black

Cass Township v. Richard Black II, Appellant

No. 70 C.D. 2011

COMMONWEALTH COURT OF PENNSYLVANIA

SUBMITTED: May 13, 2011

July 14, 2011

OPINION NOT REPORTED

MEMORANDUM OPINION PER CURIAM

Richard Black II appeals pro se from the order of the Court of Common Pleas of Huntingdon County, which was entered by agreement and required him to remove a structure from his property that was erected without obtaining the requisite Township approval and permits. After review, we affirm.

The record reveals that, in 2009, Black acquired a parcel of land in Cass Township at an upset sale conducted pursuant to the Real Estate Tax Sale Law, Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§ 5860.101 - 5860.803. Thereafter, in October, 2010, the Township filed a complaint in equity and a petition for injunctive relief against Black with respect to his use of that property; in those papers, the Township averred, inter alia, that Black constructed a building on the property without complying with the "Pennsylvania Construction Code Act, the Pennsylvania Sewage Facilities Act, and/or the Cass Township Building Code Ordinances." Petition for Injunctive Relief, ¶ 2. The Township further averred that Black was residing in the structure and was discharging sewage into an unapproved system, that his actions constituted a nuisance and that his structure was unsafe and posed a clear and present danger to life and property. The Township requested various remedies, including an injunction to preclude further discharge of sewage on the property without a permit and to enjoin Black from residing on the property.

A hearing was scheduled to address the request for injunctive relief. At the hearing, Black admitted that he did not have any sewage treatment facilities on his property¹ and indicated that he would never seek permission from the government to occupy his property. While Black made vague references to his common law right to life and shelter, in response to the court's statement that he had a duty to comply with the laws of the Commonwealth, Black essentially offered to remove the structure from the property and agreed to do so within 60 days.² Accordingly, the court entered an order, providing: "AND NOW, this 26th day of October 2010, by agreement, it is the ORDER of this Court that within 60 days the defendant shall remove from his property . . . the structure currently in place." (Emphasis added). Black complied with the order and then filed the present appeal.³

On appeal, Black first contends that pursuant to Article I, Section 1 of the Pennsylvania Constitution,⁴ he has the right to acquire and possess property andprotect it from the encroachment of others,⁵ and to construct buildings and shelters on his property without government permission or interference. He also alleges that the Township failed to demonstrate the manner in which his building constituted a nuisance or danger to others. We agree with the Township and common pleas that these arguments are moot.

In general, the court will not decide moot issues. Chruby v. Dep't of Corrections, 4 A.3d 764 (Pa. Cmwlth. 2010).⁶ A case becomes moot when a determination is sought on a matter that cannot have any practical effect on an existing controversy. Id. As this court noted in Keystone Redevelopment Partners, LLC v. Pennsylvania Gaming Control Board, 5 A.3d 448 (Pa. Cmwlth. 2010):

The cases presenting mootness problems involve litigants who clearly had standing to sue at the outset of the litigation. The problems arise from events occurring after the lawsuit has gotten underway - changes in the facts or in the law - which allegedly deprive the litigant of the necessary stake in the outcome. The mootness doctrine requires that an actual case or controversy must be extantat all stages of review, not merely at the time the complaint is filed.

Id. at 472 [quoting Pub. Defender's Office of Venango Cnty. v. Venango Cnty. Court of Common Pleas, 586 Pa. 317, 325, 893 A.2d 1275, 1279 (2006)]. In addition, the requirement that a case or controversy exists at all stages of review requires a "real rather than hypothetical controversy and one that affects an individual in a concrete manner." Id.

Here, the Township's complaint and petition sought relief for, inter alia, Black's construction and occupancy of a building without complying with state and local law. Black's agreement to remove the building eliminated any controversy regarding the propriety and safety of the structure as well as the issues now raised by Black; Black's arguments raise issues that are now merely hypothetical and the court declines to address them. However, even if the issues were not moot, there would be no merit to Black's contentions. It is well settled that while property owners have a constitutionally protected right to enjoy their property, that right is subject to reasonable limitation by the government in the exercise of its police power to protect and preserve the public health, safety, morality and welfare. In re Appeal of Realen Valley Forge Greenes Assocs., 576 Pa. 115, 838 A.2d 718 (2003). See also Cleaver v. Board of Adjustment, 414 Pa. 367, 200 A.2d 408 (1964) (stating, the constitutionally ordained right of property is and must be subject to the supreme power of government, otherwise known as its police power, to regulate or prohibit an owner's use of his property). Thus, Black is not entitled to use his property in violation of reasonable state and local regulations.

Black next appears to suggest that Article I, Section 27 of the Pennsylvania Constitution⁷ renders sewers, septic systems and privies unlawful because they create an unnatural means of disposing of human waste and deprive the people of the value of the natural environment. Black provides no legal authority for this argument. We reject it on two grounds. First, we presume the question is moot since Black is no longer residing on the property. Second, as we noted in Bodnar v. Columbia County Sanitary...