3 Pa. Commw. 200 | Pa. Commw. Ct. | 1971
Opinion by
This is an appeal from the action of the Secretary of the Department of Health refusing to entertain an appeal from the grant by the Bucks County Department of Health of a permit for the installation of an individual sewage disposal facility pursuant to the Pennsylvania Sewage Facilities Act, 1966, January 24, P. L. 1535 (1965), 35 P.S. 750.1 et seq.
The appellee, Shires Swim Club, Inc., a nonprofit corporation, desiring to construct a swimming pool in Northampton Township, Bucks County, applied, as required by Section 7(a) of the above cited act, 35 P.S. 750.7(a), to the Bucks County Department of Health
The appellant, Committee to Preserve Mill Creek, is in the words of its counsel, “a group of citizens . . . concerned with the preservation of the Mill Creek Valley and its flood plain as a public asset.” The individual appellants, Dennis O’Ryan, Clark Moore and Joseph Krafchek own properties adjacent to the Shires Swim Club property. All appellants are apparently in opposition to the use of the Shires property as a swim club and to this end have been engaged in zoning litigation in an effort to prevent its establishment.
The County Department of Health . examined the Shires application, caused an inspection to be made of the site and issued its permit to construct the proposed sewage- system. Thereafter, the appellants, by their counsel, wrote to the Secretary of Health of the Commonwealth as follows:
“The grounds of the appeal are that the application for the permit fails to disclose the proper number of potential users, fails to contain provisions for adequate installation, fails to disclose the actual location of the system, and its relationship to water sources, fails to disclose the nature and type of surrounding facilities, based on percolation test findings which are inherently and demonstrably erroneous, as being inconsistent with the findings of the United States Government, was granted without consultation with appellants, despite assurances that they would be consulted, ivould result in grave danger to health and welfare of surrounding landowners and the community at large, is contrary to the regulations of the Department of Health in various respects and is inconsistent with plans shown on the application filed by the applicant with the Northampton Township Zoning Hearing Board.
“The opportunity for a hearing under the provisions of Section 12(a) and the Administrative Agency Law is hereby requested.”
An exchange of correspondence between the writer of the above quoted letter and an Assistant Attorney General representing the Secretary of Health culminated in a denial of the appeal.
The Pennsylvania Sewage Facilities Act, supra, empowers the Department of Environmental Resources
“(a) Any person aggrieved by an action of a municipality, department of health or joint county department of health may, within thirty days after such action, appeal to the Secretary of Health who shall personally or by his designee hear the appeal in accordance with the provisions of the act of June 4, 1945 (P. L. 1388) known as the ‘Administrative Agency Law.’
“(b) All actions of the department whether under subsection (a) of this section or under any other provision of the Act, shall be taken subject to the right of notice, hearing and adjudication, and the right of appeal therefrom, in accordance with the provisions of the act of June 4, 1945 (P. L. 1388), known as the ‘Administrative Agency Law’.”
If the Legislature had intended the right to appeal to the Secretary to be limited to disappointed applicants it most certainly would have said so in Section 7(e). Instead it added an entirely new section conferring this right not upon applicants but upon any persons aggrieved. Further, we see no reason why the Legislature might not, if it chose, provide an appeal hearing before the Secretary at the instance of persons not thereafter entitled to appeal to the court. Moreover, we are instructed by Louden Hill Farm, Inc. v. Milk Control Commission, 420 Pa. 548, 217 A. 2d 735 (1966)
As indicated, we hold that the individual appellants are both persons aggrieved and persons aggrieved having a direct interest in the permit here in question. We are advised that the appellants Dennis O’Ryan and Joseph Krafchek reside on properties adjacent to the Shires property and that the residence of appellant Clark Moore is located downstream on a creek which flows through swim club property. In Denny Building Corporation Appeal, 387 Pa. 311, 127 A. 2d 724 (1956), the Supreme Court held that the owners and occupants of dwelling houses were persons aggrieved and directly affected by the action of the Philadelphia Board of License and Inspection Review exempting a builder from supplying gutters and downspouts required by statute. Mr. Chief Justice Stern pertinently wrote: “No one could be more ‘aggrieved’ by the action of the Board in this case or more ‘directly affected’ thereby than the owners and occupants of these houses, and, while the entire public is concerned as far as the overflow of the sidewalk is involved, these individuals have an obvious special interest apart from that of the general public. . . .” Azarewicz Liquor License Case, 163 Pa. Superior Ct. 459, 62 A. 2d 78 (1948) holds that a church located within 300 feet from a restaurant sought to be licensed for the sale of liquor had standing as a party aggrieved to appeal to the Superior Court from a lower court reversal of the Liquor Control Board’s discretionary refusal of a license. To determine what the rights of the individual appellants are it is necessary to look at the Act as well as the facts. Louden Hill Farms v. Milk
The Committee to Preserve Mill Creek is on an entirely different footing. It is not the owner of land near the site and it is not the authorized agent of any such owner and cannot, therefore, in the legal sense be aggrieved by the grant of the permit or have a direct interest in the denial of the appeal to the Secretary. See Cleaver Appeal, 24 D. & C. 2d 483 (1961).
We have included above a verbatim rendering of portions of the appellants’ appeal to the Secretary. Our purpose was to indicate that most of the grounds relied upon would not justify relief if proved, and hopefully thereby to avoid the flood of appeals anticipated by the Secretary. The appellants’ interest entitled to the pro
The history of this proceeding, which includes extremely-dilatory conduct on the part of appellants’ counsel, lends credence to Shires’ allegation that the purpose of this appeal is to prevent the establishment of a swimming facility in the Mill Creek Valley. For this reason we make the following order:
And noAV this 10th day of September 1971 the appeals of Dennis O’Ryán, Clark Moore and Joseph Krafchek are sustained; the appeal' of the Committee to Preserve Mill Creek is quashed; the appellants Dennis O’Ryan, Clark Moore and Joseph Krafchek are directed to specify in writing to- the Secretary of Environmental Resources in what respects the permit granted Shires SAvim Club, Inc. does not conform to departmental standards Avithin ten (10)- days from this date, failing which, this Order, upon motion of the appellees or either of them, may be vacated and the appeals herein sustained, -dismissed.
By transfer from the Department of Health effected by subsection 1901-A(14) of the Administrative Code of 1929, added 1970, December 3, P. L. , No. 275, Section 20, 71 P.S. 510-1(14). We note that the Act does not transfer the powers and duties of the
Act of 1945, June 4, P. L. 1388, Section 41, 71 P.S. 1710.41.