Can district order a mandatory connection to a sewer system?

By Daniel J. Kucera
Attorney, Chapman and Cutler

A county health district inspector entered a resident's backyard to check the septic tank. He allegedly observed a pipe with a blackish-gray discharge. Subsequently, the health district requested permission to make a dye test of the discharge, but permission was denied.

The health district ordered the resident to connect to the nearest sewer, located approximately 149 feet away. When the resident refused, she was charged with failure to connect to a sanitary sewer system. State v. Simon, 739 N.E. 2d 1257 (Ohio Mun. 2000).

The county "household sewage code" contains the following provision: "Whenever a sanitary sewerage system becomes available to the property, the building drain shall be directly connected to such sanitary sewerage system and the household sewage disposal system shall be properly abandoned." Id. at 1258.

At trial, the resident offered two defenses. First, she argued that she is not in violation of the regulation because the state failed to demonstrate that her septic tank was not operating properly.

The court rejected this argument, relying on a prior Ohio Supreme Court decision. DeMoise v. Dowell, 461 N.E. 2d 1286 (1984). That court stated that there was a broad-based legislative policy determination that septic systems are inherently more dangerous to the public health than sanitary sewage systems and must be replaced when possible. 461 N.E. 2d at 1290. Thus, the court in State v. Simon concluded that "defendant's septic tank need not be found to be inoperable before she can be ordered by the health district to connect to the sewer." 739 N.E. 2d at 1259.

The resident's second argument was that the sewer was not "available" because of the high cost of connection. She stated that she had obtained estimates ranging from $15,000 to $40,000.

The court also rejected this argument. It stated that "available," among other things, means "ready for immediate use." It said that there may be some situations in which economic cost might make connection "unavailable." However, no evidence was presented here of the value of the homeowner's property. Thus, the cost of connection could not be compared with the value of the property.

Accordingly, the court found that the state had proven a violation.

About the author: Dan Kucera is a partner with the Chicago law firm of Chapman and Cutler, specializing in public utilities, water and wastewater and environmental law. Tel: (312) 845-3757; Fax: (312) 701-2361; e-mail: kucera@chapman.com. (Back to top)