NEWS

Hess holdouts win in court

PAT FRIDGEN, Echo Pilot

Some people are talking about a decision made by Franklin County Court of Common Pleas Judge Angela R. Krom. It ended nearly eight years of wrangling between a public entity and private citizens. Judge Krom issued an Opinion and Order of Court Jan. 21 on the civil action case of Greencastle Area Franklin County Water Authority vs. Mary Ann and Fred Young III, and Thomas and Deborah Moore.

The court ruled in favor of the defendants, who will not have to hook up to municipal water. They may continue to use their wells in the Hess development.

“I was confident we would prevail,” said Fred Young.

Jason Gerhart, chairman of GAFCWA, said they lost “because the judge ruled against us.”

Andrew J. Benchoff, attorney representing the Moores, said, “I thought it was the right result.”

Other involved parties did not provide statements. Susan Armstrong, GAFCWA manager, deferred all questions to solicitor Elliott B. Sulcove. He did not return several calls for comment. Robert Miller, past GAFCWA chairman, did not return a call for comment. Benchoff notified his clients that they could contact the Echo Pilot to speak, but they did not do so.

Going to court

GAFCWA filed for a summary judgment on Nov. 7, 2011. It wanted an injunction to compel the two families to connect their homes in accordance with Antrim Township Ordinance 266 of the year 2000.

In 2007 GAFCWA completed the Hess water line, which crossed Williamsport Pike en route to a new subdivision. Neighbors selected Young to speak to the Antrim board of supervisors about the situation. They passed a resolution April 10, 2007 to grant a waiver to the residents. The Sam Miller/Curtis Myers motion was supported by Robert Whitmore, James Byers and Scott Diffenderfer.

The authority sent out a Notice to Connect in May 2011.

GAFCWA originally filed for the injunction against customers Mary Ann Young, 569 Lynn Drive, and the Moores, 11643 Kimberly Drive. Fred Young added his name to the property deed in August 2012, and was added as a defendant in February 2013. The other nine households in Hess connected to the municipal water system, or signed agreements to do so in a timely manner.

GAFCWA spent $20,639.25 on legal fees from May 2011 until the court order was released in January 2015.

Young, currently a township supervisor, was unanimously appointed to the position in September 2007 by the board. He was then elected on the fall ballot.

The arguments

The Notice to Connect was issued based on the Second Class Township Code,  which said supervisors could, by ordinance, require property owners to connect and use the water system of the township, authority or a joint water board. For any exclusion to apply, three conditions had to be met — that the water line existed within 150 feet of a home on Sept. 2, 2008; the residence had a safe water supply; and that before the September date, the property was not required to connect.

GAFCWA has contended that the third clause was not met, because the Antrim Township board of supervisors adopted Ord. 266 in Sept. 2000 when it contracted the authority to provide water to the township, and also adopted a mandatory connection policy with the 150-foot rule.

When the two families balked, then-authority manager Kenneth Womack filed the complaint in court. It went to Judge Richard J. Walsh, who retired in Jan. 2013. The case transferred to Judge Krom.

The extended deadline for all parties to file motions for summary judgment and briefs was Dec. 1, 2014. Oral arguments were held Jan. 8, 2015.

Both sides and the court agreed that it was the legal consequences of the facts that were in dispute. The case revolved around the three conditions for exemption, as recorded in PA Act 34 of 2008.

Greencastle argued that Pennsylvania case law held that homeowners could not be selectively exempted, according to court  records filed in the Franklin County Prothonotary office.

In the past, GAFCWA said it delayed enforcing the connection policy because it was hoping to fill vacant seats with representatives from Antrim Township. It was waiting until Greencastle purchased the township water system, as was the plan at the time. However, in court, Sulcove said the timing of sending the Notice to Connect was “to ensure an orderly, coordinated, and logical approach to connection.”

Judge Krom did not find case law indicating that issuing a notice was a prerequisite to forcing homeowners to connect to a public water source. Legislative history also suggested it was not the intent of the General Assembly to exempt all homes built before 2008 with its Act 34, she wrote. She was tasked with trying to determine the intentions of the legislators.

Judge Krom was not clear why GAFCWA waited until 2011 to send out the Notice to Connect to Hess residents. Then she added that the rationale was not important in the Court’s decision. She wrote that the notice went out years later, “well after the effective date of the statutory amendment that carved out an exception for homeowners not previously required to connect to the public water system.”

Because the Youngs and Moores met all three prongs of the exemption law regarding mandatory connection ordinances, she declared they did not have to connect.

Reactions

The authority had chosen to enforce the township ordinance with the option available in 2011, Gerhart explained. He was not a member of GAFCWA when the line was run in 2007.

“We knew we had to deal with it and were not having success in discussions with the potential customers,” he said. “Our only choice was to file the Notice to Connect.”

Of the three points debated in court, the pivotal one was Greencastle’s contention that the hookup was required by the 2008 law, Gerhart continued. The water line was in place before that statute took effect.

He did not see any ramifications for the authority laying new water lines in the future. If the adjacent service area relied on wells, Greencastle could enforce the mandatory connection ordinance.

Benchoff asserted the defendants met the exemption requirements. He believed each similar challenge to law was determined on a case by case basis. The decision on this one was due to facts and circumstances and the Act.

As to whether the court would have required the two families to connect if the Notice had been issued in 2007, Benchoff responded, “Possibly.” He said there was a “window in time” for a narrow category of people who didn’t need water service in 2008, and the General Assembly was aware of that.

Young and his wife were pleased with the ruling.

“Judge Krom did a very thorough job and did her homework,” he said. “The system worked.”

He did not hire an attorney, but represented the couple as the case worked its way through the legal procedures. It was time consuming, frustrating and stressful, Young said.

As to whether the result might have been different if the Notice had been sent in 2007, he replied, “I don’t know.”

He backed the supervisors, who felt the ordinance allowed them to grant waivers, and they had done it in other situations, Young said. He said “plain greed” motivated GAFCWA and the case turned out “to be frivolous.”

Young concluded, “I’m glad it’s over unless they appeal.”