Blair Township Water & Sewer Authority v. Hansen

802 A.2d 1284, 2002 Pa. Commw. LEXIS 599
CourtCommonwealth Court of Pennsylvania
DecidedJuly 22, 2002
StatusPublished
Cited by2 cases

This text of 802 A.2d 1284 (Blair Township Water & Sewer Authority v. Hansen) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blair Township Water & Sewer Authority v. Hansen, 802 A.2d 1284, 2002 Pa. Commw. LEXIS 599 (Pa. Ct. App. 2002).

Opinion

OPINION BY

Senior Judge FLAHERTY.

William H. Hansen and Gloria Hansen (Appellants) appeal from a decision of the Court of Common Pleas of Blair County (trial court) which upheld a lien placed on Appellant’s property by the Blair Township Water and Sewer Authority (Authority). We vacate the order of the trial court.

The facts in this case are not in dispute and are set forth in the following Stipulation of Facts:

1. [Appellants] are property owners who reside within Blair Township in Blair County, Pennsylvania and are the fee simple owners of the premises at issue herein.
2. That the [Authority] is a validly constituted municipal authority operating a water and sewer system within specific areas of Blair Township in Blair County, Pennsylvania.
3. That the Authority was created, among other things, for providing sewage and sewage treatment to residents of the Township.
4. That pursuant to a development plan and a grant from the Federal Government, the Authority entered into a construction of sanitary collection lines within specified areas of the Township, including the area where the Petitioners’ residence is located.
5. That the Authority bored underneath Route 36, a public state highway in Blair Township, to a point on the boundary of the [Appellants’] land and entered the [Appellants’] land and extended a lateral some twenty (20) feet onto the [Appellants’] land.
6. That the entry was without any express written easement, any express consent from the landowner-[Appellants].
7. That having extended the lateral on to the [Appellants’] land, it allowed the Authority to maintain that the [Appellants’] residence was now within the one hundred fifty (150) feet of that lateral and as such the landowner was required to tap into that sewer system.
8. That said landowner refused.
9. That the Authority entered a lien for the amount of the tap-in.
10. That said landowner instituted proceedings to have the lien removed.
11. That the sewer main is within the right-of-way and is not within one hundred fifty (150) feet of said [Appellants’] property.

[1286]*1286Appellants filed an Affidavit of Defense asserting that the Authority trespassed on their property and asking the trial court to strike the municipal lien. The Authority filed an Answer asserting that even though it constructed the lateral sewer line on Appellants’ property without their consent it can still compel them to connect to the line.

Based on the above Stipulation, the trial court concluded that, when a de facto taking occurs, the landowner is entitled to damages for the property taken. As to Appellants’ argument that the taking was not for a public purpose and therefore not subject to the provisions of the Eminent Domain Code (Code),1 the trial court stated that “[t]his Court is of the opinion that should this issue be raised before a Board of View, [Appellants] would not be successful in their argument, but nevertheless, since they are entitled to proceed with an Eminent Domain hearing, they may raise before the Board any issue which the Board is empowered to hear and decide.”2 In summary, the trial court determined that Appellants must file a petition for the appointment of a Board of Viewers under Section 502 of the Code for the purpose of determining the amount of damages that they are entitled to for this de facto taking. Accordingly, the trial court entered an order directing the lien on Appellants’ property to remain in full force and effect. This appeal followed.3

Section 502(e) of the Code provides that:

(e) If there has been a compensable injury suffered and no declaration of taking therefor has been filed, a condemnee may file a petition for the appointment of viewers substantially in the form provided for in subsection (a) of this section, setting forth such injury.

26 P.S. § l-502(e).

Appellants argue that the trial court erred by refusing to strike the Authority’s hen against their property because: 1) the unauthorized entry was a trespass and unauthorized taking of their property in violation of both the United States and Pennsylvania Constitutions, 2) the Authority is bound by the Second Class Township Code as that Code relates to the limits of taking private property and the Authority produced no evidence that it complied with those limits, 3) the Ordinance does not require that they connect to the sewer system.

The Authority contends that the trial court correctly concluded that Appellants’ only recourse is to file a petition for the appointment of a Board of Viewers. In support of its argument, the Authority relies on a 1962 Montgomery County Court of Common Pleas decision, Olzewski v. Whitemarsh Township, 84 Montg. 397, 56 Mun.L.R. 269 (1962), which was decided two years before the Code was enacted.4 [1287]*1287In Olzewski, the court held that a property-owner can be compelled to connect to a sewer line even if the authority constructs a lateral sewer line, without the landowner’s consent, to bring the landowner’s principal building within 150 feet of the sewer line. The basis for the 150 feet rule is found in Section 502(a) of the Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, added by the Act of November 9, 1995, P.L. 350, which provides, in part, that:

... If any owner of property adjoining or adjacent to or whose principal building is within one hundred and fifty feet from the sanitary sewer fails to connect with and use the sanitary sewer for a period of sixty days after notice to do so has been served by the board of supervisors ... their agents may enter the property and construct the connection. The board of supervisors shall send an itemized bill of the cost of construction to the owner of the property to which connection has been made, which bill is payable immediately. If the owner fails to pay the bill, the board of supervisors shall file a municipal lien for the cost of the construction within six months of the date of completion of the connection.

53 P.S. § 67502(a) (emphasis added).

First, we note that the proper procedure in this case would have been for the Authority to file a declaration of taking pursuant to Section 405 of the Code. Then, if Appellants wished to object, they could have filed preliminary objections pursuant to Section 406 of the Code, which provides, in relevant part, that:

(a) Within thirty days after being seived with notice of condemnation, the condemnee may file preliminary objections to the declaration of taking. The court upon cause shown may extend the time for filing preliminary objections. Preliminary objections shall be limited to and shall be the exclusive method of challenging (1) the power or right of the condemnor to appropriate the condemned property unless the same has been previously adjudicated; (2) the sufficiency of the security; (3) any other procedure followed by the condemnor; or (4) the declaration of taking. Failure to raise these matters by preliminary objections shall constitute a waiver thereof.

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802 A.2d 1284, 2002 Pa. Commw. LEXIS 599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blair-township-water-sewer-authority-v-hansen-pacommwct-2002.