Act 537 is null and void for Hegins and Hubley

Concerned Citizens win the appeal

By Rebecca Zemencik, Managing Editor • rebecca-z@citizenstandard.com

HEGINS – It’s back to the drawing boards for an Act 537 plan for Hegins and Hubley Townships.
The Concerned Citizens of Hegins Township were the victor last Wednesday when the Pennsylvania Environmental Hearing Board ruled to sustain the appeal of the Concerned Citizens who challenged the joint sewer plan which had previously been approved by the Department of Environmental Protection.
The appellants of the case included Roger Wetzel, William Wolfgang, Randy Shadle, Kenneth Richter, Kenneth Graham and Harry Mausser.
“My clients are certainly happy and feel vindicated since the ruling came down,” said Concerned Citizens Attorney Kevin M. Walsh Jr., of Donald G. Karpowich, Attorney-at-law, Drums. “They are happy that they are helping those who wouldn’t have been able to afford the sewer rates. They are not opposed to a public sewer system, they just want an affordable one.”


Although the vote went in favor of the appellants, it wasn’t a unanimous decision. The ruling was issued by Judge Richard P. Mather Sr., who heard the case last April in Harrisburg. Judges Michelle Coleman and Steven Beckman agreed with Mather while Judges Bernard A. Labuskes Jr., and Chief Judge W. Renwand opposed the ruling.
Judge Mather said that the parties all agree with certain facts which includes the township’s current Act 537 plans haven’t been updated for 50 years. The sewage surveys conducted prior to the plan showed there were high rates of malfunctioning on-lot systems in several areas of the townships. These high rates of malfunctioning systems identify a real pressing need to update the township’s plans to protect public health, safety and welfare.
“The parties disagree that the Joint Act 537 Plan is the correct approach to solve the problem,” Mather said. “Hubley Township and the Department still believe it is the best approach. The appellants, and later Hegins Township, believe it is not. The board recognizes the substantial cost and effort expended to prepare the Joint Act 537 Plan under appeal, but at the end of the day, it is a joint plan and if one of the two parties to the joint plan now oppose it as Hegins Township now does, then it is probably better to begin work on a new joint plan or separate plan revisions.
“A joint effort will not ultimately be successful if one of the two parties in the joint effort is opposed to a continuation of the joint efforts. For the reasons set forth above, the board sustains the appellants’ challenge to the Joint Act 537 Plan and vacates the Department’s approval of the Joint Act 537 Plan,” Mather said.
According to the 52-page court ruling, all things were done correct and the judges all agree the plan could have been implementable. As a footnote on one of the pages it is stated that the judges don’t know why Hegins Twp. Supervisors abruptly changed their direction and chose to oppose the plan.
This seems to be a big question that no one has the answer to.
According to the ruling, on page 10, it states “On January 13, 2016, John G. Dean, Esquire, entered an appearance on behalf of Hegins Township. On February 18, 2016, the Board held a conference call with counsel and learned that Hegins Township, one of the two Townships in the Joint Plan, was now in support of the challenge to the Joint Act 537 Plan.
“There is no record of the supervisors ever taking a vote or adopting a resolution stating they were no longer in favor of the plan,” said Hegins Township Secretary Cathy Moyer.
Supervisor Mike Begis was very upset with the ruling.
“After the township board expanded to five members is when there was obviously a change in position,” said Begis, who was serving as a supervisors on the three-member board when the Act 537 was actually approved. “I’m very upset, I’m not aware when the township took an official vote to oppose the plan and I certainly wasn’t privy to any conference calls concerning the change in direction of the plan. In my opinion this is not a victory for anyone involved. I felt the plan was implementable and it was a good plan. Now, we spent all this time and money and we have nothing. So who’s the winner?”
Attorney Walsh said he couldn’t speak to that point, however, he did agree that he interpreted the ruling also that the judges were in favor of everything except the fact that at some point Hegins Township changed positions.
On March 25, 2016, Hegins Township filed a Motion to Disqualify Counsel for Hubley Township based upon a conflict the attorney, Paul Datte, had in light of his joint representation of both Townships and Hegins Township’s announced decision to switch sides in the appeal to actively support the Appellants in their challenge to the Joint Act 537 Plan. Substitute counsel for Hubley was secured and the original joint counsel withdrew.
Since that time, Hegins Township Supervisors Mike Begis and Brad Carl have questioned whether there is not a conflict of interest to have Donald Karpowich serving as Hegins Township Solicitor while Walsh, who is also from the Karpowich law firm represents the concerned citizens. According to Walsh, who filled in for Karpowich at last week’s regular supervisor meeting, there is no conflict of interest.
The final decree states, “AND NOW, this 7th day of June, 2017, it is hereby ordered that this appeal is sustained. The Department’s April 17, 2015 approval of the Joint Act 537 Plan is hereby vacated.
“Hubley Township will wait for DEP to come back with a response and see where we stand with the plan,” said Chairman Supervisor of Hubley Township Keith Masser. “The Judge’s ruling puts us back at ground zero with the Act 537. I hope we get credit for the work done but we just have to wait to see what DEP has to say. I’m disappointed with the results.”
Anyone wishing to read the 52-page document may do so by visiting http://ehb.courtapps.com/efile/documentViewer.php?documentID=37634

 

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