S. Pileggi & S. Pileggi, h/w v. Newton Twp. ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Salvatore Pileggi and Susan :
Pileggi, h/w, :
Appellants :
: No. 1279 C.D. 2019
v. :
: Argued: November 12, 2020
Newton Township :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON, Judge (P.)
OPINION BY
JUDGE McCULLOUGH FILED: January 5, 2021
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
1
26 Pa.C.S. §§101-1106.
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.
2
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).
2
Act of July 31, 1970, P.L. 653, as amended, 35 P.S. §§691.1-691.1001.
3
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 multi-
family 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
3
The trial court ably provided a condensed and accurate representation of the gist and
factual predicate that gave rise to Appellants’ instant action:
[Appellants], whose land is situated in a township which has an
official sewage facilities plan update establishing a preferred disposal
method of on-lot, soil-based sewage disposal systems, have submitted
numerous applications to the Township and the [DEP] seeking
approval to use a package treatment plant with stream discharge
rather than the preferred on-lot system. [Appellants’] submissions
have been rejected as incomplete and deficient for not being
supported by sufficient soil testing demonstrating that on-lot sewage
disposal systems are inadequate to meet their land’s sewage disposal
needs, and in those instances where [Appellants] have appealed the
[DEP’s] determinations, those regulatory decisions have been
affirmed by the state administrative tribunal.
(Trial court op. at 1.)
4
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,
5
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.
6
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 Township
rejected both the module and request for a revision. In turn, Appellants filed a
mandamus action with the trial court, seeking an order compelling the Township to
forward their planning module to the DEP and declaring that the requested revision
was deemed approved. On August 23, 2018, the trial court granted the Township’s
preliminary objections in the nature of a demurrer and dismissed the mandamus
action. Rather than file an appeal to this Court, Appellants commenced the present
inverse condemnation action on August 29, 2019.
In their petition asserting a claim for a de facto taking, Appellants
averred that the Township’s conduct, discussed above, constituted “arbitrary reasons
for blocking the permitting process and blatant[] refus[al] to complete [the] modules
with the intent to block lawful land use.” Id. at 11 (internal citation omitted).
Appellants contended that the Wooded Lane segment of their property “had been
condemned” and that the remaining portions of the property have “been diminished . .
. so as to cause a condemnation by taking thereof” and, thus, they requested “the
appointment of a Board of Viewers to determine their damages.” Id. at 11 (internal
citation omitted).
In response, the Township filed preliminary objections, seeking to
dismiss Appellants’ inverse condemnation action for three reasons.
7
First, the Township argued that Appellants “cannot establish a de facto
taking since the Township has never exercised its power of eminent domain with
respect to [Appellants’] land, and to the contrary, has simply utilized its sewage
regulatory discretion pursuant to its police powers.” Id. at 12. The Township further
asserted that Appellants failed to allege a sufficient factual basis to support a finding
that a de facto taking had occurred because Appellants “are free to use their property
through the use of a community on-lot or an individual on-lot sewage system” and
“may also be able to use their property with an alternative (and presumably preferred)
sewage disposal method[, i.e, a package treatment plan with stream discharge,] if they
take the steps required to submit the soil testing and any other necessary supporting
information required to establish that the Township’s [o]fficial [p]lan is inadequate to
meet their sewage disposal needs.” Id. (internal citation omitted).
Second, the Township maintained that principles of collateral estoppel
and the decisions of the EHB and the Township, to the extent they were not appealed
or appealed unsuccessfully, essentially barred Appellants’ inverse condemnation
action.
Third, the Township posited that Appellants’ action was barred by the
statute of limitations.
In a responsive filing, Appellants asserted that the averments in their
petition raised factual issues as to whether the Township exercised its eminent
domain power in regulating and addressing their sewage needs and issues; the
administrative actions by the DEP and the EHB cannot be afforded collateral estoppel
effect; and their claim has been tolled by the discovery rule and, therefore, the statute
of limitations was an inapplicable defense.
8
On August 23, 2019, the trial court granted the Township’s preliminary
objections. In its opinion, the trial court provided a cogent discussion of the relevant
legal principles, particularly observing that this Court has held that “[i]t is well-
settled that the exercise of the police power is not a taking.” (Trial court op. at 18
quoting Lester v. Department of Environmental Protection, 153 A.3d 445, 466 (Pa.
Cmwlth. 2017)). The trial court then offered the following rationale to support its
dismissal of Appellants’ inverse condemnation action:
[Appellants’] pleadings and exhibits reflect that they have
submitted [p]lanning [m]odules and requested revisions of
the [o]fficial [p]lan to the Township in an effort to secure
approval to utilize a package treatment plan with stream
discharge instead of the Township’s preferred sewage
disposal method of on-lot, soil-based disposal systems.
[Appellants’] serial submissions from 2003 to 2017 have
been rejected as incomplete and deficient by the Township
and [the] DEP since they were not supported by sufficient
soil testing to properly demonstrate that on-lot, soil-based
sewage systems are inadequate to address their land’s
sewage disposal needs. On those occasions that those
determinations have been appealed by [Appellants], the
regulatory decisions have been affirmed by the [EHB].
A threshold determination must be made as to whether the
Township’s regulatory actions under Act 537 and the
Township[’]s official and revised plans involved the
exercise of its eminent domain authority or police power. If
the Township’s actions concerned the regulation of property
to promote the health, safety, and general welfare of the
public, [it] embraced its police power rather than its power
to condemn. Section 3 of Act 537 expressly states that its
policy is “[t]o protect the public health, safety and welfare
of its citizens through the development and implementation
of plans for the sanitary disposal of sewage waste.” 35 P.S.
§750.3(1). Per our appellate precedent, “[t]here can be no
doubt that the adequate disposal of sewage affects the
health and welfare of the public and is therefore subject to
regulation by the government pursuant to the police power.”
9
McNaughton Co. v. Witmer, 613 A.2d 104, 108 (Pa.
Cmwlth. 1992) [(internal citation omitted)].
Even if the factual averments, as opposed to the arguments
or legal conclusions, set forth in [Appellants’] pleadings
and exhibits are accepted as true, they reflect that the
Township’s regulatory actions relative to [their] sewage
disposal systems requests involved the exercise of its police
power relating to the health, safety, and general welfare of
the public. It is clear and free from doubt that the Township
did not exercise its power of eminent domain so as to effect
a de facto taking. Consequently, [Appellants] are unable to
establish a de facto taking by the Township in the exercise
of its right of eminent domain. As a result, the Township’s
preliminary objections in the nature of demurrer will be
sustained . . . and [Appellants’] requests for the declaration
of an inverse condemnation and the appointment of a Board
of Viewers will be dismissed.
(Trial court op. at 19-20; footnotes and some internal citations omitted, emphasis
added).
In a footnote, the trial court stated that, while the issue was not expressly
raised by Appellants, “it bears noting that when a governmental body’s regulatory
restriction pursuant to its police power ‘goes too far,’ it may be recognized as a
taking.” Id. at 20 n.8 (internal citation omitted). However, the trial court concluded
that the averments in Appellants’ petition “d[id] not raise an issue of fact as to
whether the Township’s exercise of its police power constituted a constitutionally
impermissible taking.” Id.Thereafter, Appellants filed a notice of appeal in this Court.4
4
“Preliminary objections are the exclusive method under the [] Code of raising legal and
factual objections to a petition for appointment of viewers which alleges a de facto taking.” German
v. City of Philadelphia, 683 A.2d 323, 325 n.5 (Pa. Cmwlth. 1996). When a court of common pleas
sustains preliminary objections and dismisses a petition, our scope of review is limited to
determining whether the trial court committed an error of law and whether findings are supported
by competent evidence. Id. at 326.
10
Discussion
Appellants first contend that the trial court erred in concluding that the
Township did not exercise the power of eminent domain and that the Township’s
actions, instead, were done pursuant to its police power. In short, Appellants assert
that the Township engaged in the taking of their property and the taking must be
construed as the byproduct of the authority to condemn property.
As noted by the trial court, the case law in Pennsylvania has long held
that “the exercise of the police power is not a taking.” Lester, 153 A.3d at 466
(quoting Estate of Blose, 889 A.2d 653, 659 (Pa. Cmwlth. 2005)). Indeed,
the mere fact that a taking has occurred does not necessarily
give rise to a cause of action under the Code because acts
not done in the exercise of the right of eminent domain
cannot serve as the basis of a proceeding in eminent
domain. Thus, when determining whether a compensable
taking under the Code has occurred, the dispositive question
becomes whether the act complained of was, in fact, an
exercise of eminent domain power.
Hill v. City of Bethlehem, 909 A.2d 439, 444-45 (Pa. Cmwlth. 2006). See
Commonwealth v. Barnes & Tucker Co., 371 A.2d 461, 464 (Pa. 1977) (“[G]iven our
determination that the Commonwealth is validly employing its police power in a
reasonable manner . . . there can be no finding of an unconstitutional ‘taking’ . . .
despite the impact this exercise of the police power may have on the appellant.”).
In differentiating between the two, this Court has said:
Eminent domain is the power to take property for public use
and compensation must be paid for property that is taken,
injured or destroyed. Police power, on the other hand, is the
inherent power of the government to enact and enforce laws
for the promotion of health, safety, and general welfare.
The difference lies in the nature of the action at issue. Did
the government enact or enforce a law or rule, or otherwise
“control” the use of property for the health, safety or
11
welfare of the public? Or did it take property for the
public’s benefit?
Ristvey v. Department of Transportation, 52 A.3d 425, 429 (Pa. Cmwlth. 2012)
(internal citations omitted).
Recently, in Somera Road-835 West Hamilton Street, LLC v. City of
Allentown (Pa. Cmwlth., No. 568 C.D. 2019, filed August 25, 2020) (Somera Road)
(unreported),5 a panel of this Court explained the contours of the exercise of eminent
domain power as follows:
Section 502(c) of the Code vests a landowner with a right to
assert what is commonly known as a de facto claim or
taking. By its very nature, this type of claim involves
specified property that has not been formally taken by a
governmental entity through the actual exercise of the
power of eminent domain, and it “is applicable only where
a condemnor is found by the court to have taken property
without the filing of a declaration of taking.” Department
of Transportation v. Schodde, 512 A.2d 101, 102 n.1 (Pa.
Cmwlth. 1986).
Generally, the factual and legal matrix for a de facto claim
takes one of two forms. Where, as here, a governmental
entity does not announce a plan or its intention to institute
formal condemnation proceedings to take a specified
portion of land or area, see, e.g., Lehigh-Northampton
Airport Authority v. WBF Associates, LP, 728 A.2d 981,
985-89 (Pa. Cmwlth. 1999) (discussing cases), a landowner
can assert a de facto claim by establishing that the
consequential or collateral effects from a formal
condemnation proceeding have resulted in a taking of his or
her property. See, e.g., Wolf v. Department of Highways,
220 A.2d 868, 871 (Pa. 1966).
5
We cite Somera Road, an unreported decision, for its persuasive value in accordance with
section 414(a) of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code
§69.414(a).
12
In this context, a landowner . . . must demonstrate, at a
minimum, three separate criteria. “[O]ne of the requisites
of a de facto taking is that the condemnor must be an entity
clothed with the power of eminent domain.” In re
Condemnation by Commonwealth of Pennsylvania,
Department of Environmental Resources, 497 A.2d 284,
286 (Pa. Cmwlth. 1985). The second is that the “de facto
taking must result from a governmental body’s actual
exercise of the power of eminent domain.” Darlington v.
County of Chester, 607 A.2d 315, 320 (Pa. Cmwlth. 1992).
And the third is that “the damages sustained by the
condemnee[—i.e., the landowner—]must be an immediate,
necessary[,] and unavoidable consequence of such
exercise.” Riedel v. County of Allegheny, 633 A.2d 1325,
1328 (Pa. Cmwlth. 1993). In other words, in its condensed
formulation, “a de facto taking requires that the injury
complained of [be] a direct result of intentional action by an
entity incidental to its exercise of its eminent domain
power.” In re Mountaintop Area Joint Sanitary Authority,
166 A.3d 553, 562 (Pa. Cmwlth. 2017).
Somera Road, slip op. at 13-15 (footnotes omitted; emphasis added).
Here, as the trial court found, during the course of its conduct and
actions with respect to implementing its Act 537 official plan and Ordinance and
processing Appellants’ submissions, the Township did not wield the power of
eminent domain in any way. In fact, there is no allegation in the petition that the
Township filed a declaration of taking for any part of land within the Township;
consequently, Appellants have not averred that a de jure taking has occurred.
Further, absent the actual and formal exercise of the power to condemn, any adverse
effect to Appellants’ land and/or property rights cannot be said to have been
incidental or otherwise related to an exercise of eminent domain authority; thus,
Appellants have not stated a valid claim for a de facto taking. Cf. In re Mountaintop
Area Joint Sanitary Authority, 166 A.3d at 562 (determining that a landowner did not
state a claim for a de facto taking where “the losses suffered by the [landowner] were
13
merely the unintended consequence” of the governmental authority’s condemnation
activities and were “not . . . related to or incidental to [the authority’s] condemnation
powers”). Otherwise, we agree with the trial court that the Township was exercising
its police power by enacting and enforcing laws for the promotion of health, safety,
and general welfare. Specifically, per the authority of Act 537, the Township
developed an official sewage facilities plan, which was updated and approved by the
DER, and enforced the plain terms of that plan and its Ordinance when denying
Appellants’ various submissions for an alternative treatment facility that was not
permitted under the official plan or the Ordinance.
Nonetheless, Appellants point to their allegation that, in 2007, a member
of the Township’s Planning Commission stated “that if [Appellants] put in the
sewage system all lots would become buildable and we don’t want that.” (R.R. at
112a.) Relying on this averment, Appellants cite Redevelopment Authority of Oil
City v. Woodring, 445 A.2d 724 (Pa. 1982), and assert that the Township was not
utilizing its police power because it was taking into account “aesthetic
considerations.” (Br. for Appellants at 25.)
In Redevelopment Authority of Oil City, the city council approved an
urban redevelopment proposal that required, among other things, that “[e]xisting
above ground utilities shall be incorporated into the underground system” along a
specified street in the city. Id. at 726. Notably, the introduction to the proposal stated
that the city had experienced deterioration due to a “general lack of aesthetics,” and
that the potential for improvement could be realized through “the provision of public
improvements necessary to create an esthetically appealing environment”; the
proposal’s project description stated that one of the objectives of the plan was to
improve economic vitality “by creating an attractive environment”; and the
14
proposal’s design objectives “were developed to promote a functional, attractive and
visually appealing environment.” Id. at 727. Based on this fact, as well as other
evidence demonstrating that, prior to the adoption of the proposal, the primary
concern of the proposal was aesthetic in nature, our Supreme Court concluded that
the city was not exercising its police power because “aesthetic reasons . . . could . . .
never constitute an exercise of the police power.” Id. (internal citation omitted).
Accordingly, the Court concluded that the city was exercising its eminent domain
authority pursuant to an urban redevelopment plan and, in the process, a de facto
taking had occurred.
The decision in Redevelopment Authority of Oil City is readily
distinguishable on its facts. Unlike in that case, here, there is no evidence that when
the Township enacted its official plan in 1992, or its Ordinance in 1993, the impetus
or driving force for the regulations was a concern for the visual appearance of the
Township’s sewer infrastructure or surface area in general. Rather, on their face, the
official plan and Ordinance outlined the needs of the Township regarding sewage
facilities, detailed the steps to obtain a permit to construct an on-lot sewage system,
and explained which sewage facilities were acceptable. As such, Redevelopment
Authority of Oil City offers no credence to Appellants’ argument and we reject it as
meritless.
In the alternative, Appellants assert that even if the Township exercised
its police power, the Township acted unreasonably, had gone “too far,” and, thus,
effectuated a taking. Specifically, Appellants contend that the Township “has taken
[their] property by denying permits both for on-lot sewage systems and for alternate
sewer systems.” (Br. for Appellants at 27.) In essence, Appellants have stylized or
15
re-casted their claim as a “regulatory taking.” See id. at 26 (citing and discussing
Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)).
However, in legal terrain governing a regulatory taking, “neither the
imposition of [a] permit requirement itself nor the denial of a permit necessarily
constitutes a taking.” United States v. Riverside Bayview Homes, Inc., 474 U.S. 121,
127 (1985). “[A]fter all, the very existence of a permit system implies that
permission may be granted, leaving the landowner free to use the property as
desired.” Id. Moreover, Act 537 does not vest Appellants with a statutory
entitlement to have a sewer system of their choice. Nor does the common law of
property bestow upon Appellants a property interest in having a sewer connection.
“It is, of course, old law that a municipality is under no obligation to furnish sewers
to particular property owners. Municipal corporations have ample authority to
provide sewers but it is not their duty to make every sewer or drain which may be
desired by individuals.” Charles v Diamond, 360 N.E.2d 1295, 1299 (N.Y. 1977).
Indeed, “it is virtually beyond question that an individual property owner has no right
to insist that the municipality provide him with a [particular] system.” Id.Generally, courts “are reluctant to push the notion that the denial of a
permit in which one has no property interest can somehow amount to an
unconstitutional taking.” Henry v. Jefferson County Commissioners, 637 F.3d 269,
276 (4th Cir. 2011). To be sure, the United States Supreme Court has said that where
a regulation does not deprive a person of a property interest protected by the Due
Process Clause,6 “it would be surprising indeed to discover” that the regulation would
6
See U.S. Const. amend. XIV, §1.
16
“nonetheless violate the Takings Clause.[7]” Concrete Pipe & Products of California,
Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602,
641 (1993). “To have a property interest in a benefit, a person clearly must have
more than an abstract need or desire for it. He must have more than a unilateral
expectation of it. He must, instead, have a legitimate claim of entitlement to it.”
Board of Regents of State College v. Roth, 408 U.S. 564, 577 (1972). Put simply, “an
interest in obtaining sewer service is nothing but an inchoate interest in the conferral
of a benefit to enhance market value and . . . [t]he Takings Clause simply does not
create an affirmative obligation for local governments . . . to increase property
owners’ land value.” Pulte Home Corp. v. Montgomery County, 909 F.3d 685, 695-
96 (4th Cir. 2018) (internal citations and quotation marks omitted). See Alachua
Land Investors, LLC v. City of Gainesville, 107 So.3d 1154, 1159 (Fla., 1st Dist., Ct.
App. 2013) (“[T] he mere fact that the denial of a permit deprives a property owner of
a particular use the owner deems most profitable or preferable does not demonstrate a
taking.”). In any event, for purposes of analyzing the viability of an alleged
regulatory taking, it cannot be said that Appellants, at this stage, have lost
economically viable use of their land. Even if it is accepted, for the sake of the
argument, that they will not obtain a package treatment plan with stream discharge, it
is possible that Appellants can still use a community on-lot or an individual on-lot
sewage system, if they decided to pursue such a course of action. Cf. Concrete Pipe,
508 U.S. at 645 (“[O]ur cases have long established that mere diminution in the value
of property, however serious, is insufficient to demonstrate a taking; see, e.g., Village
7
See U.S. Const. amend. V. The Fifth Amendment to the United States Constitution, made
applicable to the States through the Fourteenth Amendment to the United States Constitution,
prohibits the taking of private property for “public use” without just compensation.
17
of Euclid v. Ambler Realty Co., 272 U.S. 365, 384 (1926) (approximately 75%
diminution in value); Hadacheck v. Sebastian, 239 U.S. 394, 405 (1915) (92.5%
diminution).”); MHC Financing Limited Partnership v. City of San Rafael, 714 F.3d
1118, 1127 (9th Cir. 2013) (holding that an 81% diminution in value was not
sufficient to constitute a regulatory taking). Therefore, we conclude that Appellants
have failed to allege a viable de facto claim as a matter of law.
Appellants’ remaining arguments are unavailing and, given their nature,
will be disposed of briefly.
According to Appellants, the trial court erred as a matter of law in
making a “threshold determination” as to whether the Township’s regulatory actions
involved the exercise of its eminent domain or its police power. Appellants posit that
“[t]he only ‘threshold determination’ a court is authorized—or permitted—to make is
to determine ‘[i]f an issue of fact is raised’ by the petition.” (Br. for Appellants at
21.) To the contrary, if the alleged facts, taken as true, are insufficient to state a
prima facie case for a de facto taking, “the preliminary objections must be sustained
and the petition dismissed.” York Road Realty Co. v. Cheltenham Township, 136
A.3d 1047, 1052 (Pa. Cmwlth. 2016). That is the case here.
In their brief, Appellants also challenge how the Township and/or the
DEP mishandled their submissions. For example, Appellants assert that at “[t]he
heart of this case is [their] averments that the Township unfairly used the pretext, or
excuse, of inadequate soil testing to deny [Appellants’] applications for non-onlot
sewage treatment for the [p]roperty, and refused to complete [their] module and
submit it to [the] DEP.” (Br. for Appellants at 30.) In addition, Appellants “aver
that the soil testing (done in part by the Township) showed that their soil was
unsuitable for on-lot sewage treatment” and “that soil testing is not required for a
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property owner to obtain a sewage permit when the owner proposes to use stream
discharge, i.e., not on-lot sewage treatment.” Id. at 30-31. In the same vein,
Appellants continue, “the Township improperly used its 1993 ‘Comprehensive Plan
Update’— which is inconsistent with and not part of its 1991 official Act 537 Plan—
to thwart development such as theirs. The ‘Comprehensive Plan Update’ . . .
effectively prevents development of any part of the Township that is unsuitable for
even alternate-type on-lot sewage systems and contradicts the Township’s Act 537
Plan.” Id. at 31.
However, these and many other allegations made throughout Appellants’
brief, including assertions that the Township’s and the DEP actions were
“unreasonable, arbitrary, or discriminatory,” id. at 36, merely mount a collateral
attack to the way in which the Township and the DEP handled or disposed of their
submissions. See id. at 38-41. Any errors in these regards should have been pursued
through the appeal process and, in the instances where Appellants did file an appeal,
the ZHB affirmed the rulings below. In sum, Appellants cannot use the inverse
condemnation action and the present appeal as a forum to contest the validity of the
administrative decisions denying their submissions. See Department of
Environmental Protection v. Peters Township Sanitary Authority, 767 A.2d 601, 603
(Pa. Cmwlth. 2001) (“The doctrine of administrative finality precludes a collateral
attack of an administrative action where the party aggrieved by that action foregoes
his statutory appeal remedy.”); see also Potratz v. Department of Environmental
Protection, 897 A.2d 16, 19-20 (Pa. Cmwlth. 2006) (discussing the applicability of
the doctrine of administrative finality in cases involving the permitting process).
Further, to the extent that Appellants place fault of the DEP and/or the ZHB, those
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administrative entities were not named as party-defendants in this suit. As such, we
find that Appellants’ assertions lack merit.
Therefore, having concluded that Appellants have failed to advance a
meritorious argument establishing that the trial court committed an error of law or
abused its discretion, we affirm the trial court’s order granting the Township’s
preliminary objections and dismissing Appellants’ petition and de facto taking claim.
________________________________
PATRICIA A. McCULLOUGH, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Salvatore Pileggi and Susan :
Pileggi, h/w, :
Appellants :
: No. 1279 C.D. 2019
v. :
:
Newton Township :
ORDER
AND NOW, this 5th day of January, 2021, the August 23, 2019 order
of the Court of Common Pleas of Lackawanna County is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge