Judge: Hydrant must go
BY STACI WILSON
A hydrant used to fill a water truck must be removed from the residential lot where it was installed last year.
The hydrant, installed in Jan. 2012 by Pennsylvania American Water Company for anti-drilling activist Craig Stevens is located on a property owned by Dr. Monica Marta at 12 Jessup St., on a “conditional use” lot in Montrose Borough’s residential zone.
Stevens appealed a December 2012 decision against the hydrant by the borough’s zoning hearing board to the Susquehanna County Court of Common Pleas.
Susquehanna County President Judge Kenneth Seamans handed down his order, Wednesday, May 8, upholding the zoning board’s decision.
Judge Seamans determined that the existence of the hydrant on the Marta property was an unpermitted use and further ordered Stevens and/or Marta, with the assistance of PAWC to remove the water hydrant, piping and concrete barriers within 45 days.
According to the decision handed down by the judge, the conditional use on the property is only for a light commercial customer service establishment.
“No where in permitted uses, conditional uses or special exceptions is permitted a water transfer station such as (the one) maintained by Mr. Stevens on the Marta property,” noted Judge Seamans.
Continuing in the decision, the judge stated: “The appeal must be denied in that no permit was applied for and hence no permit was ever granted by the Montrose Zoning Hearing Board for the use of the property of Marta in a residential district… to build and maintain a water distribution system for the purpose of transporting potable water outside the borough limits by truck.”
Stevens’ appeal to the Court of Common Pleas was the result of a notice of violation for maintaining an unpermitted water distribution system. The notice of violation was issued to Marta in August 2012 by James Smith the borough’s zoning officer.
Stevens and attorney Kevin Boylan, and solicitors for the zoning board and the borough, Paul Litwin and Marion O’Malley appeared April 25 in the Court of Common Pleas.
Judge Seamans allowed for arguments of the issues raised in the appeal but, after admitting the transcript of testimony from the zoning hearing, ruled that no further testimony in the form of evidence would be taken by the court on that day.
Following the April 25 court date, Stevens and his attorneys also attempted to consolidate non-traffic citations filed in Montrose District Court against Marta by the borough zoning officer with his appeal of the zoning hearing board findings.
On May 1, the Judge Seamans denied the consolidation of the cases, noting that Marta was not a party to the zoning hearing board appeal; and the District Court citations had been filed against Marta as the property owner and not Stevens.
Marta appears in District Court
Marta appeared before District Judge Jeffrey Hollister on Thursday, May 9, on the zoning citations. Attorney Boylan also represented Marta.
Boylan asked that the citations be dismissed, citing a “stay” he said was in effect when the citations were filed in January by the zoning officer.
Borough solicitor Marion O’Malley argued the “stay” was only in effect pending resolution of the issue by the zoning hearing board.
O’Malley said that with the December board decision regarding the hydrant, the issue had been “long resolved.”
She noted to Judge Hollister that Marta was not involved in the zoning hearing board appeal lodged in the Court of Common Pleas; and that the citations were property brought.
O’Malley also told the court that a decision had been handed down Wednesday on Stevens’ zoning board appeal with the Court of Common Pleas which ordered the spigot removed from the Marta property.
Specifically on the issue of the “stay,” O’Malley said no petition for a stay was ever filed.
Zoning Officer James Smith took the stand, testifying that he sent a notice of violation to Marta. He told the court that he was subsequently contacted by Marta’s husband, Scott Ely.
Smith also told the court that he advised the property owner to see if a permit or variance was needed for the spigot.
But, he told the court, the borough never received an application for a change of use permit.
Smith said, “(They) went forward without borough permission.”
He told the court the hydrant was still located on the property but that he did not know if it was currently being used.
In cross examination, Boylan asked Smith if somebody needed to make money in order for a property to be considered commercial.
Smith answered, “No,” saying the hydrant was, in fact, a water distribution center.
Boylan also asked Smith if he had contacted PAWC about the hydrant.
“No, that’s not who I would be enforcing,” answered the zoning officer.
Smith also testified that violation notices issued to Marta, prior to the Aug. 21 violation, had been withdrawn by him because they had not been “worded correctly.”
He also reiterated to the court that Marta’s Montrose property was located in a residential zone and had been granted a conditional use variance before he became the zoning officer.
Montrose Borough Secretary Erin Jenner also took the stand. She presented a spreadsheet prepared at O’Malley’s request of the legal costs incurred by the borough connected with the hydrant.
O’Malley said if the court determined violations occurred that – in addition to daily fines – the borough would also be seeking reimbursement on legal fees as allowed in the municipal planning code and also the Montrose borough code.
Boylan argued that the legal fees were not just applicable to Marta’s alleged zoning violations but also included fees arising from Stevens’ zoning board appeal.
Jenner told the court that the borough had amassed $13,572.85 (as of May 9) in fees resulting from the hydrant issue.
Boylan asked to see the invoices from the attorneys connected to the cases but O’Malley argued that privileged information is often included on the invoices.
“I think we have a right to see what the bills are for if we’re being asked for legal fees,” Boylan countered.
O’Malley responded that all of the expenses incurred by the borough were the result of Marta allowing the hydrant to operate on her property.
Boylan offered only Craig Stevens as a witness.
Stevens told the court he moved to Susquehanna County in 2010 and met several Dimock residents. He said he was concerned when Cabot Oil & Gas Corporation was no longer required by the state to provide water to Dimock residents and that is when he opted to have the hydrant installed to supply them with water.
On the stand, Stevens attempted to testify about his dealings with the Montrose Borough Council, including a walk-out of council members in February 2012 when an audience member said she planned to videotape the meeting.
The hydrant issue was listed on council’s agenda to be discussed during that meeting.
O’Malley told Judge Hollister that Stevens’ appeal had run its full course in the Court of Common Pleas and was now a matter of record but that the citations against Marta did not exist until earlier this year.
“I was told I would get my day in court and I didn’t,” Stevens said on the stand.
In summation, O’Malley said that no testimony to refute the existence of the violations by Aug. 21, 2012, had been presented by Marta.
She also noted that Marta did not appeal the notice of violation and had not offered any defense.
O’Malley asked the District Court to impose penalties, including the fine of $500 per day, reasonable attorney fees and court costs.
In his closing, Boylan argued that the nearly $14,000 in legal fees was unreasonable for citations that did not exist until January of this year when the citations were filed; and that the penalty should be no more than $500 per occurrence.
Judge Hollister said he would review the evidence and would notify both parties when he reached a decision in the matter.