Pileggi v. Newton Twp.

245 A.3d 377

Salvatore PILEGGI and Susan Pileggi, h/w, Appellants

v.NEWTON TOWNSHIP

No. 1279 C.D. 2019

Commonwealth Court of Pennsylvania.

Argued November 12, 2020

Decided January 5, 2021

David E. Romine, Philadelphia, for Appellants.

Robert M. Tucker, Chester Springs, for Appellee.

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE J. ANDREW CROMPTON, Judge (P.)

OPINION BY JUDGE McCULLOUGH

Salvatore Pileggi and Susan Pileggi, husband and wife (collectively, Appellants), appeal from the August 23, 2019 order of the Court of Common Pleas of Lackawanna County (trial court) granting the preliminary objections of Newton Township (Township) and dismissing Appellants’ inverse condemnation action, alleging a de facto taking of their land by the Township under section 502(c) of the Eminent Domain Code (Code),¹ 26 Pa.C.S. § 502(c).

In this case, the Township allegedly elected not to have a municipal sewage treatment or central collection system to service its residents (at least not in Appellants’ vicinity and neighborhood) and has, instead, opted to allow sewage to be disposed through approved on-lot disposal systems. Through various avenues, Appellants attempted to apply for and obtain the necessary regulatory permission from the Township and/or the Department of Environmental Protection (DEP) to build their proposed sewage facility, but they have been unsuccessful in their endeavors. Dissatisfied with the results, Appellants filed a petition claiming, in essence, that the Township had effectuated a de facto taking in denying and/or not ensuring the approval of their proposals for an alternative sewage treatment facility. For the reasons that follow, we affirm.

Legal, Factual, and Procedural Background

The Pennsylvania Sewage Facilities Act, Act of January 24, 1966, P.L. 1535, No. 537, as amended, 35 P.S. §§ 750.1 - 750.20a (Act 537), "requires that all Commonwealth municipalities develop and implement comprehensive official plans that provide for the resolution of existing sewage disposal problems, provide for the future sewage disposal needs of new land development[,] and provide for the future sewage disposal needs of the municipality." In re Drumore Crossings, L.P. , 984 A.2d 589, 593 n.5 (Pa. Cmwlth. 2009).

Pursuant to Act 537, each municipality in the Commonwealth must develop and submit to the DEP an officially adopted plan for sewage services for the areas within its jurisdiction and, from time to time, submit revisions to such plans to the DEP as may be required. The official plan of a municipality is a comprehensive scheme, adopted by the municipality and submitted to and approved by the DEP, setting forth the sewage disposal system within its territory. The official plan is often referred to as a base plan and is subject to revision, and a municipality can change its official plan to provide for and accommodate additional, newly identified, and/or existing sewage facility needs of its residents. See generally Chapter 71 of the DEP's regulations, 25 Pa. Code §§ 71.1 - 71.81.

The regulations of the DEP state that a landowner may file an application for revision of a municipality's Act 537 plan, typically by proposing planning modules. The municipality may adopt or refuse the proposed revision. If adopted, the revision is incorporated into the official plan and is submitted to the DEP for its review and approval or disapproval. See generally 25 Pa. Code §§ 71.51 - 71.59. Act 537 also provides that a landowner may make a private request to the DEP to issue an order that directs a change to a municipality's official plan. In order for a private request to be approved by the DEP, the landowner must show that the municipality is not implementing its plan or that the existing plan is inadequate to meet the landowner's sewage disposal needs. See section 5(b) of Act 537, 35 P.S. § 750.5b. Finally, as pertinent here, a landowner can submit to the municipality an application for a permit to construct an individual or community on-lot sewage disposal system. In the event a municipality approves such a permit, the DEP has the authority to revoke the permit if it determines that the permit violates applicable regulations or statutes; if the municipality denies the permit application, the landowner can appeal to the DEP. See generally Chapter 72 of the DEP's regulations, 25 Pa. Code §§ 72.1 -72.81. Otherwise, when a landowner desires to use a "[s]ubsurface disposal" system "or other method of disposal of a substance defined as industrial waste under the Clean Streams Law,"² rather than an individual or community on-lot sewage system, the landowner must apply for and obtain a permit from the DEP. 25 Pa. Code § 72.25(g)(2).

Considered within this legal backdrop, the pertinent facts and procedural history of this case are as follows.³ Appellants are the record owners of approximately 60 acres of land located at 9156 Valley View Drive in the Township. Six of those acres include a recorded 10-lot, single-family residential development known as "Wooded Lane," which is zoned residential (R-1), with the only permitted use being single-family dwellings. The remainder of the land, comprised of approximately 54 acres, consists of 5 acres that are zoned for single-family or multifamily dwellings, while the other 49 acres are zoned R-1. (Trial court op. at 2.)

In 1973, the Township adopted an official sewage facilities plan and this plan was approved by the Department of Environmental Resources (DER)—now the DEP—on June 19, 1973. On January 6, 1992, the Township adopted a plan update, which was approved by the DER on May 29, 1992. Id. at 2-3. In the official plan, as updated, the Township attached an adopted ordinance (Ordinance). In pertinent part, the Ordinance stated that "[a]ll persons installing an individual or community sewage disposal system shall first obtain a permit which certifies that the site, plan, and specifications of such systems are in compliance with [Act 537] as well as all other rules and regulations adopted pursuant to [Act 537] and the provisions of this Ordinance and all other applicable ordinances and regulations of the Township." (Reproduced Record (R.R.) at 349.)

In 1993, the Township amended its Ordinance to include a "Comprehensive Plan Update." In relevant part, an addition to the Ordinance provided that the Township would "[d]iscourage the use of non-soil based sewage disposal methods to limit development to the carrying capacity of the land." (Trial court op. at 4; internal citation omitted).

In 2001, Appellants submitted an application to the Township for on-lot sewage system permits for development in the Wooded Lane area. However, Appellants later decided to abandon this application, stating that they "would take a different course of action." Id. at 5 (internal citation omitted).

In 2003, Appellants submitted a planning module to the Township, proposing to construct "a package treatment plant with stream discharge for Wooded Lane." Id. (internal citation omitted). However, the Township rejected the application as incomplete because "it did not address the sewage needs of the entire property." Id. (internal citation omitted). In 2007, Appellants submitted another planning module to the Township, but, again, this submission was rejected as "incomplete." Id. (internal citation omitted). Appellants did not appeal the Township's rejections of their 2003 and 2007 planning modules to the DEP.

In 2008, Appellants submitted a third planning module to the Township, which again "proposed a package treatment plan with stream discharge." Id. (internal citation omitted). After the Township allegedly failed to respond in a timely fashion, Appellants essentially filed an appeal and submitted the planning module to the DEP, which rejected it "as incomplete." Id. (internal citation omitted). Thereafter, Appellants appealed to the Environmental Hearing Board (EHB), and the EHB denied the appeal in 2011. Appellants, however, did not file a petition for review in this Court.

On August 6, 2011, Appellants submitted a "private request" to the DEP, requesting an order directing the Township to revise its Act 537 official sewage facilities plan, asserting, among other things, that the Township's plan was "inadequate to meet the residents’ or property owners’ sewage disposal needs." Id. at 6 (internal citation omitted). The Township opposed the request, contending that Appellants failed to demonstrate "that currently available on-lot sewage disposal systems—the permitted means for sewage disposal by the Township's [o]fficial [p]lan with respect to the property at issue—cannot meet [their] sewage disposal needs." Id. (internal citation omitted). The DEP agreed and noted that Appellants have failed to conduct sufficient soil and on-site testing to establish that the Township's official plan was inadequate.

After conducting additional soil testing on their property, and discussing the matter with representatives from the DEP, Appellants submitted more planning modules to the Township in 2013 and 2016. These submissions were rejected by the Township, and no further action was taken by Appellants.

Then, in 2017, Appellants submitted another private request to the DEP. In doing so, Appellants sought a directive from the DEP ordering the Township to revise its official plan to allow their property "to be served by a ‘Project System,’ i.e. , [a] non-soil-based sewage system." Id. at 8 (internal citation omitted). The DEP denied the request, Appellants appealed to the EHB, and the EHB affirmed the DEP. Subsequently, Appellants filed a petition for review with this Court; however, during the pendency of the instant action, they voluntarily discontinued their appeal on September 11, 2018.

Meanwhile, also in 2017, Appellants submitted yet another planning module to the Township, along with a request for a revision of the official plan. For support, Appellants relied on test results that were obtained in 2001. The...