Greencastle Area Franklin Cnty. Water Auth. v. Young, 204 C.D. 2015

126 A.3d 377

GREENCASTLE AREA FRANKLIN COUNTY WATER AUTHORITY, Appellant

v.Mary Ann YOUNG and Fred M. Young, III, h/w, and Thomas J. Moore and Deborah J. Moore, h/w.

No. 204 C.D. 2015

Commonwealth Court of Pennsylvania.

Argued Sept. 14, 2015.

Decided Oct. 23, 2015.

Elliott B. Sulcove, Chambersburg, for appellant.

Andrew J. Benchoff, Waynesboro, for appellees.

BEFORE: BONNIE BRIGANCE LEADBETTER, Judge, and MARY HANNAH LEAVITT, Judge, and JAMES GARDNER COLINS, Senior Judge.

OPINION BY Senior Judge COLINS.

Greencastle Area Franklin County Water Authority (Authority) appeals from an order of the Court of Common Pleas of the 39th Judicial District, (Franklin County Branch) (Trial Court) granting the motions for summary judgment filed by Mary Ann Young and Fred M. Young, III (the Youngs) and Thomas J. Moore and Deborah J. Moore (the Moores) (collectively, the Property Owners) and denying the Authority's motion for summary judgment. In this matter, the Authority filed suit in the Trial Court seeking an injunction to compel the Property Owners to connect to an extension of the water system abutting their properties. We conclude that the Property Owners were exempt from mandatory connection to the water system pursuant to Section 2603(b) of the Second Class Township Code (Code)¹ and accordingly affirm the order of the Trial Court.

The facts in this matter are not in dispute. The Youngs own and reside at 569 Lynn Drive in Greencastle, Pennsylvania (Young Property) and the Moores own and reside at 11634 Kimberly Drive in Greencastle, Pennsylvania (Moore Property). (Am. Compl. ¶¶ 2, 3, Reproduced Record (R.R.) at 84a.) The Young Property and Moore Property are located within the same residential development in Antrim Township (Township).

In 2000, the Board of Supervisors of the Township entered into a contract with the Authority to provide water systems in certain areas of the Township. (Am. Compl. ¶ 7, R.R. at 85a.) That same year, the Board of Supervisors enacted Ordinance No. 266 of 2000 (Ordinance), which compelled property owners in the Township to connect to water systems abutting their properties pursuant to Section 2603 of the Code. (Am. Compl. ¶ 6, Exhibit A: Ordinance, R.R. at 85a, 93a–102a.) The Ordinance provided in relevant part:

A. The Owner of any Improved Property as defined in 143–1, supra., abutting the water system and whose principal building is within 150 feet of the water system, shall connect such Improved Property with such Main and shall use such Water System, in such manner as the Authority may require, within 90 days after notice to such Owner from the Township or the Authority to make such connection; subject, however to such limitations and restrictions as shall be established herein or otherwise shall be established by the Township or the Authority, from time to time.

...

E. The notice by the Township or the Authority to make a connection to a Main, referred to in Section 143–2(A) shall consist of a copy of this Chapter, including any amendments and/or supplements at the time in effect, or a summary thereof, and a statement requiring the connection in accordance with the provisions of this Chapter and specifying that such connection shall be made within 90 days after the date such notice is given or served. Such notice shall also state that failure to connect within the 90 days shall result in the Board of Supervisors or their agents entering upon the property and constructing the connection at the owner's expense. Such notice may be given or served at any time after the appropriate Main or Lateral is in place that can deliver water to the particular Improved Property. Such Notice shall be given to or served upon the Owner by personal service or by registered mail to his last known address, or by such other means as shall be permitted by law.

(Ordinance § 143–2(A), (E), R.R. at 96a–97a.)

In 2007, the Authority completed construction of the "Hess Line," an extension of the main water line that abutted the Young Property and the Moore Property and was within 150 feet of the principal buildings on those properties. (Am. Compl. ¶¶ 9, 11–12, R.R. at 86a.) During an April 10, 2007 meeting of the Board of Supervisors of the Township, Fred Young addressed the Supervisors on behalf of the owners of the properties abutting the Hess Line and raised the owners' concerns regarding the presumed mandatory connection requirement that the completion of the Hess Line would entail. (Moore Answer and New Matter, Exhibit D–1: Minutes of April 10, 2007 Township Board of Supervisors Meeting at 1–2, R.R. at 26a–27a.) Following a discussion of other water main extension projects within the Township, the Supervisors passed Resolution No. 156, in which they "agree[d] to grant a waiver exemption from connection to public water ... for ten homeowners along Kimberly Drive and Lynn Drive through proper legal proceedings that, if possible, may require a revised ordinance." (Id. at 2, R.R. at 27a.)

Although the Hess Line was completed in 2007, the Authority did not send out notices to connect to the Property Owners until May 25, 2011. (Am. Compl. ¶ 14, Exhibit B: Notices to Connect (Notices), R.R. at 86a, 104a–107a.) The notices indicated that pursuant to Section 143–2(E) of the Ordinance, "you are hereby notified that you must connect your residence ... to the water lateral of the public water system of [the Authority] within ninety (90) days of the date that this Notice is served upon you." (Notices, R.R. at 105a, 107a.) The notices advised the Property Owners that failure to connect would result in the Authority entering their property and building the connection itself, but offered the Property Owners the option of signing an agreement to promise to connect before July 1, 2019. (Notices, R.R. at 104a–107a.)

In August 2011, the Property Owners informed the Authority by letter that they would not connect to the Hess Line or execute the agreement promising to connect. (Am. Compl. ¶¶ 17, 18, Exhibits C and D, R.R. at 87a, 109a, 111a–112a.) The Authority filed a complaint against Mary Ann Young and the Moores on November 7, 2011 seeking an injunction to compel connection to the Hess Line in accordance with the Ordinance and Section 2603 of the Code. After Fred Young was added to the deed for the Young Property, the Authority amended its complaint on May 1, 2013 to name the Youngs jointly, along with the Moores. The Property Owners filed answers and new matters and following the close of discovery, the Authority and the Property Owners filed cross motions for summary judgment.

In their summary judgment motions, the Property Owners set forth two arguments for why they were exempt from mandatory connection to the water system. First, the Property Owners argued that they were exempted from connection by Resolution No. 156 of the Township Board of Supervisors. The Property Owners asserted that Resolution No. 156 was authorized by the Ordinance, which states that the mandatory connection requirement is "subject ... to such limitations and restrictions as shall be established ... by the Township or the Authority, from time to time." (Ordinance § 143–2(A), R.R. at 96a.)

Second, the Property Owners argued that they were exempted by Section 2603(b) of the Code, which was added by the Act of July 4, 2008, P.L. 284, and became effective on September 2, 2008. Section 2603(b) provides:

(b) A property owner who, after the effective date of this subsection, is subject to mandatory connection pursuant to subsection (a)(1), shall not be required to connect to the water system pursuant to that subsection if all of the following conditions exist:

(1) The water system or part or extension of the system that is within one hundred fifty feet of the principal building was in existence on the effective date of this subsection.

(2) The principal building has its own supply of water which is safe for human consumption.

(3) Prior to the effective date of this subsection, the property owner was not required to connect to the existing system.

53 P.S. § 67603(b). The Property Owners argue that they meet each of the three criteria for the Section 2603(b) statutory exemption because (i) the Hess Line was completed in 2007 prior to the effective date of this provision, (ii) the water in the Property Owners' wells has been tested to show that it is safe for human consumption,² and (iii) the Property Owners were not required to connect until May 25, 2011 when the notices to connect were issued, which was after the effective date of subsection (b).

The Authority argued in its summary judgment motion that the Property Owners met all of the requirements for mandatory connection under the Ordinance and Section 2603 because they owned property abutting the Hess Line, the principal buildings on the Young Property and Moore Property were within 150 feet of the Hess Line and the Property Owners had received notices to connect. The Authority contended that the Property Owners were not exempted from connection pursuant to Resolution No. 156 because Section 2603 does not permit township ordinances to authorize selective exemptions of properties. Finally, the Authority argued that the Property Owners could not claim the statutory exemption of Section 2603(b) because the Property Owners were legally obligated to connect when the Hess Line was completed in 2007 and the Section 2603(b) exemption only applies to properties that were "required to connect" after September 2, 2008.

The Trial Court granted the Property Owners' summary judgment motions and denied the Authority's summary judgment motion. In an opinion by Judge Angela R. Krom, the Trial Court first rejected the Property Owners' argument that they were specifically exempted by Resolution No. 156, observing that in cases decided prior to the 2008 amendment this Court held that "[a]n ordinance that gives some but not all property owners the option to connect to the water system violates the authorization language of Section 2603, but one...