The Law

DEP-System Trumps Objectors by Ron Davis Approval of a method of sewage disposal means that the last barrier no longer stands in the way of developing a new shopping center in Drumore, PA. But plans for the shopping center, Drumore Crossings, were on hold until the developers solved that sewage-disposal issue. Opposing the building plans was a group of “objectors” to the project, and that group’s arguments with regard to sewage treatment carried a lot of weight. The problem was magnified by the fact that the town of Drumore has no public sewer system. So the shopping center’s developers were forced to show that their building plans include an approved means of on-site sanitary sewage treatment. On the advice of a sewer engineer, the developers chose a system approved by the Department of Environmental Protection (DEP). The engineer explained that such systems have been used successfully at shopping centers in New Jersey, Florida, and other states. Other specialists in that field agreed with that engineer. In response, the opponents of the shopping center presented the testimony of two DEP employees. One of those employees noted that the system chosen for the center’s development had consistently failed tests at a public school where it was installed. (But that DEP employee also admitted that the malfunctions at the school could be attributed to inept operators.) The other DEP employee simply concluded that such a system would present a “challenge” to efficiently disposing wastes at a shopping center. A settlement agreement backed the developers’ plans so long as those plans comply with certain conditions for construction of the facility. The conditions included a plan outlining the construction of an on-site sewage-treatment plant and drip-irrigation system. Also, the developers must take whatever further action the DEP requires for approval of the plan. At a subsequent hearing, however, a hearing officer concluded that the developers failed to demonstrate that “the proposed shopping center use would be served by an approved means of sewage disposal.” On appeal of that decision, a Pennsylvania court agreed that the settlement agreement was not in the public interest because it did not satisfactorily resolve the sewage-disposal issue. The developers then appealed, and a Pennsylvania appellate court reversed the lower court, explaining that the conclusions reached were premature. Stated the judge, “It is the province of the DEP, not a township, to issue a permit to a sewage-treatment plan. The developers presented uncontroverted testimony that an on-site mechanical treatment plant using drip irrigation was a method regularly approved by DEP. This is all it was required to do under the zoning laws. Lest there be any doubt, the DEP approved the township’s sewage-treatment-and-disposal update plan for the shopping center property.” (In Re Appeal of Drumore Crossings, L.P., 2009 WL 3838655 [Pa.Cmwlth.]) Decision: November 2009 Published: December 2009