Sewage Facilities - Private Request
In the recent case Carroll Township v. DEP, EHB Docket No. 2008-173-L (issued July 16, 2009) the Environmental Hearing Board (“EHB”) sustained a DEP Order to the Township relative to DEP’s grant of a private request. The property owner owned an approved lot in Carroll Township. The lot was not suitable for on-lot disposal, which was what the Township’s 537 Plan called for. The lot did not have suitable soils and had steep slopes.
The property owner filed a planning module with the Township seeking to install a Small Flow Treatment Facility (“SFTF”) which would be designed to treat the effluent and discharge it to a stream located on the property. The Township denied the planning module, stating that the proposed SFTF was not in accordance with the 537 Plan or the Township’s goal of limiting the use of SFTF’s to previously developed properties.
The Board determined that the Department had the burden of proof as the appeal from Carroll Township was relative to an order from the Department, directing the Township to approve the SFTF. The parties had disputed who had the burden of proof as there was no clear case law on the matter. The Department justified the issuance of the order to the Township on its finding that it had a mandatory obligation to approve a private request if a resident could show that a municipality's 537 Plan was inadequate. The Board found that the standard for granting a private request is whether, in the Department’s sound discretion, the 537 Plan fails to adequately provide for the Township’s sewage facilities needs. Here the 537 Plan was inadequate to meet the property owner’s needs. There was no dispute that the lot was a valid existing lot, that the lot was not suitable for on-lot treatment and disposal and that there is nothing conceptually wrong with the use of SFTFs. Here the failure of the plan to address the lot owner’s needs trumps the Township’s stated goal of limiting the use of SFTFs to replacement systems.
