Dennis v. Texas Township Board of Supervisors
Dennis v. Texas Township Board of Supervisors
Opinion of the Court
Opinion by
Clinton Dennis (Appellant) appeals an order of the Wayne County Court, of Common. Pleas which affirmed the denial of Appellants sewage permit application by the Respondent, Texas Township Board of Supervisors (Board). For the reasons set forth below, we affirm.
Appellant owns property in Texas Township, Wayne County, which is improved by a two-story home and
The SEO denied Appellants application pursuant to regulations promulgated under the Pennsylvania Sewage Facilities Act, Act of January 24, 1966, P.L. (1965) 1535, as amended, 35 P.S. §§750.1-750.20. See 25 Pa. Code §§73.11, 73.12. After a hearing, requested by Appellant, the Board again denied the permit application. On appeal to the court of common pleas, Judge Robert J. Conway remanded the case to the Board for another hearing so that a complete record of the proceedings before it could be made, pursuant to Section 553 of the Local Agency Law, 2 Pa. C. S. §553. Two hearings were held and the transcript filed with the court of common pleas.
Following oral argument before Judge Conway, the case was assigned to Judge Harold A. Thomson, Jr., who entered an opinion and order on October 14, 1986.
Appellants first argument on appeal is that Judge Thomsons determination did not comply with the provisions of the Local Agency Law because the opinion and order was not rendered by the judge who heard Appellants oral argument. We do not agree. :.
Appellant argues, secondly, that the trial courts opinion was contrary to law in that the court erred in equating the comprehensive scheme of the Flood Plain Management Act, Act of October 4, 1978, P. L. 851, as amended, 32 P.S. §§679.101—679.601, with the identification by a municipality of specific flood plain areas. We also reject Appellants argument on this issue.
The statutory scheme of flood plain managément in the Commonwealth stems from the establishment in 1968 of the National Flood Insurance Program to provide federal assistance, in the form of risk-sharing with insurers, to help insure property against flood damage. See 42 U.S.C. §§4011-4128. Under the program, the Secretary of Housing and Urban Development
A Flood Hazard Boundary Map was established for Texas Township by the Department of Housing and Urban Development, Federal Insurance Administration, on November 15, 1974. On this map, Appellant’s property is within a “special flood hazard area,” as confirmed by testimony before the Board. See Notes of Testimony from May 6, 1986 (N.T.) at 9, Reproduced Record (R.R.) at 100a.
The Township later adopted a Municipal Floodplain Management Ordinance (Ordinance) on May 16, 1983. Section 4.01(C)(3) of the Ordinance provides in part that “[n]o part of any on-site sewage system shall be located within any identified floodplain area except in strict compliance with all state and local regulations for such systems.” Section 3.00 states as follows:
The identified floodplain area shall be any area of the Township of Texas, subject to the one-hundred (100) year flood, which is identified as*266 a Special Flood Hazard Area (Zone A) on the Flood Hazard Boundary Map (FHBM) as issued by the Federal Insurance Administration dated November 15, 1974.
In determining the “one hundred year flood”
The crux of Appellants second argument before us is that the Board should not have relied upon the Flood Hazard Boundary Map because the map was not “completed” and did not indicate the one hundred year flood elevation required for regulation under the Ordinance. He further asserts that thé Township should permit property owners to prove, on 'a case-by-case basis, whether or not their property does lie within a flood plain area. We simply cannot agree.
Appellants application was denied by the SEO based upon the Ordinance and the following DER regulation:
§73.12 site location.
(a) A propdséd absorption area having the following characteristics shall be considered unsuitable for the installation of an on-lot system and a permit shall be denied where:
*267 (2) The area is identified by completed Federal Flood Insurance mapping as a floodway.
(3) Completed flood mapping is not available, but the soil has been mapped or identified as floodplain soil or a floodprone area.
25 Pa. Code §73.12(a) (2) and (3). We, first of all, note that contrary to Appellants assertion, we are satisfied that the regulation does not provide divergent bases for the denial of his permit and that the. SEO did not err in citing both §73.12(a) (2) and (3).
According to testimony presented before the Board, the Flood Hazard Boundary Map prepared for the Township was a preliminary- map and not complete. See N.T. at 21, R.R. at'112a. Despite Appellants claims, however, we do not think the SEO or the Board erred in relying on the map. As testified to by both the DER employee who advised the SEO-on Appellants application, and the SEO himself, even though the mapping had not been completed, they relied on the map as the only available source and felt bound by it. N.T. at 23 and 29, R.R. at 114a and Í20a. Although the map does not indicate any elevations, including the one hundred year flood, or the floodway, we believe the maps indication of the special flood hazard area was sufficient grounds for the SEO to deny Appellants permit under the Townships own Ordinance or 25 Pa. Code §73.12 (2).
Appellant presented evidence to the Board to establish that his property is not in a flood plain or comprised of flood prone soil, in an attempt to challenge its designation as a special flood hazárd area on the incomplete Flood Hazard Boundary Map. Although the Board may require an applicant to submit extrinsic evidence, the Board is not bound to rely on such information under the Ordinance. See Section 3.Ó1.
In any event, we will not resolve this obvious factual issue which has been inappropriately raised in the
Finally, we reject. Appellants argument that even if his property lies in a flood, plain, he should be permitted to install his sewage system based on the- following Ordinance provision: ■ -
Any modification, -alteration, reconstruction, . or improvement of any kind to an existing structure, to an extent or amount of less than .fifty (50.) percent of its market ■ valtie, shall be elevated and/or floodproofed to the. greatest extent possible. - • ,
Section 6.00(B). This provision is clearly, inapplicable to the case at bar. Appellant is not modifying or improving a structure, but installing a.brand new sewage disposal system in an area which is subject, as we have seen, to a complex system of federal, state and local regulation.
We, accordingly, affirm- the trial courts, conclusion that because Appellant s property . is within a special flood hazard area as identified by> the Flood Hazard Boundary Map, the Boards denial of his application for a sewage system was proper.
Thé order of the Wayne County Court of Common Pleas in the above-captioned proceeding is hereby affirmed.
The case was assigned to Judge Thomson by the Supreme Court, upon Judge Conways request, because Judge Conway was an acquaintance of Appellant.
The program is now administered by the Director of the Federal Emergency Management Agency.
42 U.S.C. §4101.
42 U.S.C. §4012a.
Section 201 of the FPMA, 32 P.S, §679.201.
Section 202 of the FPMA, 32 P.S. §679.202.
Section 205 of the FPMA, 32 P.S. §679.205. Both agencies also have promulgated flood plain management regulations. See 16 Pa. Code §§38.1-38.11; 25 Pa. Code §§106.1-106,63.
A “one hundred year flood” is' a flood which will occur once every 100 years, or has the probability of occurring 1% of the time. See Tohickon Valley Transfer, Inc. v. Tinicum Township Zoning Hearing Board, 97 Pa. Commonwealth Ct. 244, 509 A.2d 896 (1986); Section 104 of the FPMA, 32 P.S. §679.104.
In so concluding, we need not reach the third issue raised by Appellant, namely whether he presented sufficient evidence to establish that his property Was' not in a flood plain area. ’
Case-law data current through December 31, 2025. Source: CourtListener bulk data.