Millstone Enterprises, Inc. v. Com., Dept. of Environmental Resources

• Decision Date: 22 October 1986
• Parties: MILLSTONE ENTERPRISES, INC., and William R. Birdseye, Petitioners, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL RESOURCES, and Township of South Huntingdon, Westmoreland County, Pa., Respondents. MILLSTONE ENTERPRISES, INC., and William R. Birdseye, Appellants, v. TOWNSHIP OF SOUTH HUNTINGDON, WESTMORELAND COUNTY, Pa., Appellee.
• Court: Pennsylvania Commonwealth Court

Page 814

516 A.2d 814

101 Pa.Cmwlth. 408

MILLSTONE ENTERPRISES, INC., and William R. Birdseye, Petitioners, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL

RESOURCES, and Township of South Huntingdon,

Westmoreland County, Pa., Respondents.

MILLSTONE ENTERPRISES, INC., and William R. Birdseye, Appellants, v. TOWNSHIP OF SOUTH HUNTINGDON, WESTMORELAND COUNTY, Pa., Appellee.

Commonwealth Court of Pennsylvania.

Argued June 10, 1986.

Decided Oct. 22, 1986.

Thomas A. Crawford, Jr., Pittsburgh, for Millstone Enterprises, Inc. and William Birdseye.

Frank P. Anto, West Newton, and John W. Pollins, III, Greensburg, for Township of South Huntingdon.

Gary A. Peters, Pittsburgh and Dennis W. Strain, for respondents.

John Pollins, Greensburg, for appellee.

Before MacPHAIL and DOYLE, JJ., and ROGERS, Sr. J.

MacPHAIL, Judge.

Millstone Enterprises, Inc. and William R. Birdseye (Millstone), in the case docketed at No. 3080 C.D.1985, appeal a decision of the Westmoreland County Court of Common Pleas entered on November 12, 1985 which dismissed their exceptions and made final the February 4, 1985 order of that Court which granted an injunction requested by the Township of South Huntingdon. We will affirm that order. In the case docketed at No. 73 C.D.1986 ¹, Millstone has filed a "Petition for a Writ of Mandamus" against the Township and the Department of Environmental Resources (DER). ² Both DER and the Township have filed preliminary objections to Millstone's petition. We find that at least some of those preliminary objections have merit and require that the petition be dismissed.

We will first address Millstone's appeal from the denial of its exceptions to the Common Pleas Court's order granting the Township's petition for an injunction.

Our scope of review in equity matters is limited to determining whether the Chancellor's findings are supported by substantial evidence, whether an error of law was committed, or whether the Chancellor abused his discretion. Babin v. City of Lancaster, 89 Pa.Commonwealth Ct. 527, 493 A.2d 141 (1985).

The pertinent findings of fact made by the Chancellor in his February 4, 1985 opinion which are supported by substantial evidence are as follows:

2. [Millstone is the owner] ... of real estate in South Huntingdon Township, upon which a building has been constructed, which has been used, and is presently being used, as an "adult book store."

3. [Millstone] ... installed a sanitary sewage holding tank on the subject property accompanying the erection of the building.

4. [Millstone] ... did not apply for or receive a sewage permit for the sewage holding tank.

5. As of October 2, 1984, [Millstone's] ... sanitary sewage holding tank was still connected to the flush toilet facilities in the building.

6. On or about October 2, 1984 [Millstone] ... caused to be installed a portable toilet unit on the premises.

7. [Millstone] ... does not have and has not applied for a sewage permit for the portable toilet.

8. [The] ... Township has not ennacted [sic] an ordinance allowing for the use of holding tanks.

9. After the [Township's] Sewage Enforcement Officer, in response to anonymous complaints, discovered that [Millstone] ... had installed the holding tank without a permit, [Millstone] ... requested of him an application for a permit. The Sewage Enforcement Officer advised him that the property was located in a flood plane [sic] area and that accordingly a permit could not be issued.

....

12. There is no municipal sewage disposal system in this area of South Huntingdon Township.

13. By a properly enacted resolution, the Commissioners of South Huntingdon Township designated Westmoreland County to develop a plan for sewage disposal in accordance with the Pennsylvania Sewage Facilities Act [ (Act) ³.

14. Westmoreland County's plan, adopted pursuant to the resolution, does not permit the use of a "holding tank."

The Chancellor entered an order which enjoined Millstone from occupying the building until a further order was issued upon proof of the issuance of a valid sewage permit under the Act. Millstone was also commanded to permanently disconnect the holding tank and to remove the portable toilet. On February 14, 1985, the Chancellor issued a stay of his order to allow time for Millstone's sewage application, which had just been filed with the Township, to be processed. On August 28, 1985, the Chancellor issued an order vacating the stay, "it appearing that [Millstone's] ... administrative remedies before the Commonwealth of Pennsylvania, Department of Environmental Resources have been exhausted without the issuance of a sewage permit."

Millstone argues that the Township is not entitled to an injunction of any kind because it brought its case to an equity court without itself having done equity and with unclean hands. Millstone's argument centers on its allegations that the Township unfairly

prevented [Millstone] ... from obtaining a sewage permit by failing to plan for sewage disposal in appellants' area of the township, by refusing to let the appellants apply for a sewage permit, by eventually refusing to refer the appellants' application to the regional santition [sic], by discriminating against the appellants in granting and denying permits by selectively enforcing the sewage facilities act in order to close appellants' store, and by refusing to cooperate with appellants' offers to obtain a permit ... ⁴

It is uncontroverted that the Township refused to give Millstone the proper application for a sewage permit for quite some time. Indeed, it did not do so until the hearing concerning the injunction was underway. There is, however, not a shred of evidence that this was based on anything more than a good faith belief by Township officers that a permit for any kind of a system could not be granted because the building was located on a floodplain. While we agree with Millstone that the Township did not meet its burden of proof at the hearing before the Chancellor that the building was located on a floodplain, we conclude that this finding is not crucial to the proper granting of an injunction. We also find that the breach by the Township of its duty to give Millstone an application does not prevent it from having an injunction granted.

Section 2 of the Act, 35 P.S. § 750.2, includes the following definition:

"Individual sewage system" means a system of piping, tanks or other facilities serving a single lot and collecting and disposing of sewage in whole or in part into the soil or into any waters of this Commonwealth or by means of conveyance to another site for final disposal ...

The system Millstone had installed obviously falls under this definition because it was a holding tank which was periodically emptied and the contents trucked away.

Section 7(a) of the Act, 35 P.S. § 750.7(a) states:

No person shall install, construct, or request bid proposals for construction, or alter an individual sewage system or community sewage system or construct, or request bid proposals for construction, or install or occupy any building or structure for which an individual sewage system or community sewage system is to be installed without first obtaining a permit indicating that the site and the plans and specifications of such system are in compliance with the provisions of this act and the standards adopted pursuant to this act.

Section 12(a) of the Act, 35 P.S. § 750.12(a) grants the following means of enforcement:

Any local agency or any municipality which is a member of a local agency shall have the power to institute suits in equity to restrain or prevent violations of Section 7 of this act occurring within the jurisdiction or corporate limits of said local agency or municipality.

Further, DER regulations provide that

[t]he installation of any treatment tank, subsurface absorption area or any holding tank constitutes either the installation of an individual or a community sewage system and requires a permit prior to beginning the installation of the system or beginning the construction [,] installation or occupancy of any building or buildings for which such a system will be installed. For purposes of this section the installation of an individual or community sewage system shall include the repair, replacement or enlargement of any treatment tank, subsurface absorption area, or holding tank unless the Department determines that a permit is not required in a particular case.

25 Pa.Code § 71.41(a).

While it may be true that the Township was dilatory in processing Millstone's request for an application, and while we do not condone the Township's inaction, the fact remains that Millstone did install the holding tank sewage system without ever having applied for a sewage permit. It is clear from the sections of the Act quoted above that the Township was entitled to an injunction from the moment that the system was first installed without the permit being granted.

Millstone asserts, however, that even if the Township is entitled to injunctive relief, the injunction is too broad in that it not only enjoins its use of the holding tank and the private toilet, but also prohibits it from occupying the building.

We keep in mind that injunctions should be issued only where the right of the plaintiff is clear to the remedy requested. State Ethics Commission v. Landauer, 91 Pa.Commonwealth Ct. 70, 496 A.2d 862 (1985). The decree should not go beyond the requirements of the particular case, nor give to the favored party greater relief than that to which he is entitled by the nature and extent of his rights. See Ranck v. Bonal Enterprises, Inc., 467 Pa. 569, 359 A.2d 748 (1976); Liberty Corp. v. D'Amico, 457 Pa. 181, 329 A.2d 222, cert. denied, 419 U.S. 1054, 95 S.Ct. 635, 42 L.Ed.2d 651 (1974).

Section 7(a) of the Act, 35 P.S. § 750.7(a) prohibits anyone from "occupy(ing) any building or structure for which an individual sewage system ... is to be installed without...