Editor’s Note: This summary by Karla Chaffee, Evan Seeman and Dwight Merriam appearedoriginally on the RLUIPA Defense Blog here: https://www.rluipa-defense.com/2016/06/sewer-connection-must-be-by-the-least-restrictive-means
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.
Yoder v. Sugar Grove Area Sewer Authority, No. 1956 C.D. 2015 (Pa. Commw. Ct. 2016)
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.