Barbara L. Yoder and Joseph I. Yoder (“Owners”) own a home in Sugar Grove Township, Pennsylvania (“Township”), which has a mandatory sewer connection ordinance (the “Ordinance”), requiring connection to the Sugar Grove Area Sewer Authority’s (“Authority”) infrastructure.  According to the Ordinance, any property that abuts a sewer system constructed by the Authority must connect to the system at the owner’s expense.

The Owners are Old Order Amish, and one tenet of their religion is to disavow the use of electricity, including running water—which requires the use an old-fashioned privy (outhouse). In 2008, the Owners and the Authority entered into a Sewage Services Agreement (Agreement). The Owners agreed to pay the connection fee, past due sewer charges, future monthly charges, and dispose of their privy waste at least once a year into the Authority’s pumping station.  In 2010, the Authority filed a municipal complaint against the Owner’s for non-payment of sewer fees.  The Authority also filed a separate action for breach of the Agreement and to seek injunctive relief requiring connection to the sewer system.  The trial and appeals courts found in favor of the Authority and directed the Owners to connect to the sewer system.  If the Owners failed to connect, the court authorized the Authority to enter the property and connect the dwelling to the sewer system at the Owner’s expense.  Paragraph 5 of the order provided that:

[The Authority] shall, in the process of connecting the property to the sewer system, take due care as to [Owners’] religious convictions, and shall proceed in a manner so as to pose the least possible intrusion on [Owners’] religious convictions and beliefs.

The Owners and the Authority continued to disagree over the method of connection.  The Authority issued a letter stating that the Owners must open an electricity account in order to run a grinder pump required for service on their property.  In response, the Owners filed a petition for injunctive relief.

Ater a two day hearing the court ruled that the Owners would not be required to open an electricity account, although they could be billed for usage through the Authority, and “[the Authority] may connect [Owners’] premises to [the Authority’s] sewer system in a manner that shall be at the [the Authority’s] sole discretion and at [Owners’] sole expense.  This Order supersedes Paragraph 5 of the [2013 Order] at Docket No. 191 of 2012.”

The Owners appealed the decision, arguing that the trial court had previously ordered that the Authority require connection in a manner that was least restrictive to the Owners’ religious exercise, and had impermissibly modified the court’s final order.  They also argued that the trial court erred in not considering all of the elements for a preliminary injunction.

On review, the appeals court agreed with the Owners that the trial court had impermissibly modified the 2013 order requiring the sewer connection.  It therefore reinstated the original paragraph five. It also remanded the decision to deny the requested injunction, which sought immediate injunctive relief from an electric-dependent connection.

The appeals court found that the trial court had erred in not considering whether requiring connection through the use of electricity constitutes the least intrusive means of interference with the Owners’ religious exercise:

The trial court’s analysis regarding the threat to public safety pertained to the lack of any sewer connection at all, not a connection by non-electric means, or, failing that, electricity generated by natural, non-electricity provider means.  Importantly, the trial court also did not address the Owners’ alleged clear right to the least intrusive means of a mandatory connection.

The Commonwealth Court of Pennsylvania’s decision in Yoder v. Sugar Grove Area Sewer Authority, No. 1956 C.D. 2015 (Pa. Commw. Ct. 2016) is available here.  The decision is an important reminder that while ordinances such as this one (requiring a sewer connection) may not be a “land use regulation” invoking RLUIPA, the First Amendment to the U.S. Constitution provides very similar, if not identical protection, in other contexts.

Original photo by davedudeSome rights reserved.

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Photo of Karla Chaffee Karla Chaffee

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six Fact Patterns of Substantial Burden in RLUIPA: Lessons for Potential Litigants,” (with Dwight Merriam) published in Albany Government Law Review (Spring 2009). Karla has continued to write and speak on RLUIPA and has represented clients in several federal proceedings, including RLUIPA, First Amendment, and Equal Protection claims. In addition to her RLUIPA practice, Karla has litigated complex environmental matters, defending claims under Massachusetts Chapter 21E. Karla’s transactional experience includes pre-acquisition and pre-financing due diligence, environmental risk assessment and risk mitigation. She also represents clients seeking local zoning approvals and counsels them on the impact of proposed or recently enacted land use legislation, as well as on land use trends across the country.

Karla is also a proud member of Robinson+Cole’s Pro Bono Committee and is dedicated to maintaining pro bono work as part of her practice. Her pro bono clients include individuals and families seeking asylum in the United States. She has also represented nonprofit organizations in obtaining tax-exempt status and has served as legal counsel in a zoning appeal for a nonprofit association created to support and protect a national park.

Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.