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State ex rel. Foster v. Brown County Health Department

Court of Appeals of Ohio, Twelfth District, Brown

November 6, 2017

STATE OF OHIO EX REL. ROBERT FOSTER, et al., Appellants-Relators,
BROWN COUNTY HEALTH DEPARTMENT, et al., Appellees-Respondents.


          Robert M. Smyth, for appellants-relators.

          Zachary A. Corbin, Brown County Prosecuting Attorney, Mary McMullen, for appellees-respondents.


          S. POWELL, J.

         {¶ 1} Appellants-relators, the state of Ohio ex rel. Robert Foster, Robert Foster, and Judy Foster (collectively, the "Fosters"), appeal from the decision of the Brown County Court of Common Pleas granting summary judgment to appellees-respondents, the Brown County Health Department and Brown County Health Commissioner, Harold "Rusty" Vermillion (collectively, "Health Department"), on the Fosters' amended complaint seeking a writ of mandamus in a suit involving the permitting and installation of a septic tank on the Fosters' Brown County property. For the reasons outlined below, we affirm.

         Facts and Procedural History

         {¶ 2} This matter involves a dispute spanning over two decades regarding the permitting and installation of a septic tank on the Fosters' property known as Lot 4 of the Tart Subdivision, Kendall Road, Winchester, Jackson Township, Brown County, Ohio. According to the record in this case, at all times relevant, the permitting and installation of a septic tank in Brown County involves a two-step process that requires the issuance of two separate permits: (1) a "septic permit" to allow for the inspection of the property and soil to determine what kind of septic system can be installed on the property, a permit that has also been referred to as a "layout, " "on-site application, " "septic system layout, " "site permit, " "site approval, " "system evaluation, " "site evaluation form, " and "site evaluation permit;" and, (2) an "installation permit" that approves the actual installation of the approved septic system. Mr. Foster was familiar with this two-step process since he was a licensed contractor and registered septic system installer with Brown County who installed home septic systems during his time as the owner of a manufactured modular home dealership in Brown County.

         {¶ 3} In September of 1996, an article was published in the Brown County Press, a local newspaper, reminding all property buyers, whether home owners, realtors, or investors, to obtain a "septic permit" from the Health Department before beginning any development on property to ensure the property was approved for a septic system. The article further stated that these permits "do not expire and are transferable with the property." However, when asked during his deposition if either the septic permit or the installation perm it were so-called "lifetime permits" that never expired as the Fosters claimed, Vermillion, the Health Commissioner, testified: "I have no idea who wrote the article, but it's not correct." Vermillion further testified:

My testimony is that there is no lifetime permit, either one of these things. They all expire at some point if they're not utilized, either through a change in law or an expiration date, which in most instances listed on the face of the document.

         Explaining septic permits further, Vermillion testified:

Those expire - those evaluations which you're calling a site permit, those expire when the rules or the law changes in Columbus [referring to the Ohio Department of Health]. The board of health can't expire - they can't supersede the revised code.

         Concluding, Vermillion testified:

[T]he layout, what you're referring to as septic permits, would have an expiration date which is dictated by a change in the sewage regulations which is changed at the state level.

         {¶ 4} On December 30, 1996, the Fosters filed an application for a septic permit described in the September 1996 newspaper article.[1] Thereafter, on January 7, 1997, the Health Department issued the Fosters a septic permit that included comments from the individual who inspected the property, Jerry Waits, approving a "1500 gal septic tank 900 feet of leach lines with a curtain drain." The record indicates this type of septic system is also referred to as a "conventional septic system." It is undisputed that the permit issued to the Fosters on January 7, 1997 did not contain an expiration date on the face of the document. However, the septic permit issued to the Fosters did include the following notice:

Topography is poor for septic in Brown County. It will be the owner's responsibility to install a system to meet the Brown County Health Department's regulations and the Ohio Revised Code.

         {¶ 5} Over seven years later, in October of 2004, the Fosters completed building a home on their property. The Fosters, however, did not apply for an installation permit to install the previously approved septic system. As a result, no septic system was installed on the property.

         {¶ 6} On December 3, 2004, Stephen Dick, the Health Department's Director of Environmental Health, sent a letter to the Ohio Department of Health ("ODH") inquiring about when "installation permits and site evaluations should expire." When asked during his deposition why he sent this letter, Dick testified:

Well, we've had a history of systems not working in our county, and it's because of soils like Mr. Foster has on Kendall Road that are not conducive to leach lines. So we were wanting to make sure that the system that the homeowner put in moving forward is the right system for the soil type.

         Dick further testified:

Because up until that point we were honoring those older permits, but we knew that they were not laid out for the proper soil type. So we wanted to be able to issue permits to homeowners that we know are going to work.

         {¶ 7} On January 6, 2005, an administrator with ODH answered Dick by letter advising him that according to the Ohio Administrative Code, installation permits expire after one year. However, as it related to septic permits, which the administrator referred to as "site evaluation forms" or "site evaluation permits, " the administrator advised Dick the following:

Site evaluations forms or permits are not addressed in the current household sewage disposal rules. We would recommend that an expiration date be incorporated through the Brown County Health Department rules or policies on site evaluations. If the site evaluations are allowed to expire, based on time limits, then the health department will be able to keep all permits and approved designs current. Establishing expiration dates will also streamline the administrative process.

         {¶ 8} On January 12, 2005, the Brown County Board of Health ("Board of Health") held a board meeting, during which it discussed the letter received from the ODH administrator. Following this discussion, the Board of Health passed a resolution revoking all septic permits issued prior to June 1, 1999 if the permit holder did not obtain an installation permit within six months. Although septic system installers registered with Brown County were notified of this change, including Mr. Foster who, as noted above, was a registered septic system installer in Brown County, it is undisputed that no notice was ever given to the individual holders of the affected septic permits.

         {¶ 9} Due to this newly enacted resolution, on May 27, 2005, the Fosters obtained an installation permit from the Health Department authorizing them to install the septic system previously approved as part of the septic permit issued to them on January 7, 1997. The Fosters, however, did not install the septic system within the year and the installation permit expired on May 28, 2006. According to Mr. Foster's deposition testimony, the Fosters did not install the previously approved septic system due to their then financial constraints.

         {¶ 10} On August 31, 2006, the Fosters submitted to the Health Department a "Household Wastewater System Evaluation Application, " or, more simply, an updated application for a new septic permit. However, unlike previous applications for a septic permit, this application included an explicit notification that the permit would expire two years from the date issued.

         {¶ 11} Several weeks later, on September 20, 2006, the Health Department approved the Fosters' system evaluation application and issued them a septic permit to install a septic system on their property. As part of this septic permit, the individual who inspected the property, Dick, commented:

The Brown County Health Department strongly recommends that a mound system be install for this lot. This is due to the shallow depth to mottles and fragipan. However, the homeowner can go against this recommendation to install a 500 gpd aerator into 900' of leach line. The leach field will need to have a curtain drain around it and down every third line. The installer permit will need to be purchased before 12-29-06 in order to have this system.

         Although receiving this new septic permit, it is undisputed the Fosters never obtained an installation perm it for the approved septic system due to their continuing financial constraints.

         {¶ 12} On July 10, 2007, and in compliance with the General Assembly enactment of Am.Sub.H.B. 119 effective July 2, 2007, the Board of Health passed, as an emergency measure, a resolution that required "vertical separation distances from limiting conditions and soil absorption requirements for construction and operation of onsite [household septic systems] in Brown County * * *." Specifically, this resolution required, among other things, "[s]oil absorption components" to "maintain a vertical separation distance of at least two feet * * *." In explaining this resolution further, Dick, the Health Department's Director of Environmental Health, provided deposition testimony that the resolution was to ensure "that if somebody downstream has a creek where this is going into, that that effluent [bacteria, viruses, nitrogen, phosphates, and suspended solids] is being treated properly."

         {¶ 13} On June 24, 2013, nearly six years after the applicable resolution was passed by the Board of Health, the Fosters filed with the Health Department an "Application for Site Review - Sewage Treatment System, " which, again, was nothing more than another updated application for a septic permit. The application was subsequently approved and a septic permit was issued to the Fosters on July 15, 2013. As part of this permit, the inspector, Dick, commented that due to the nature of the soil on the property, and based on resolution passed by the Board of Health in response to the Generally Assembly's passage of new rules and regulations regarding septic systems contained in Am.Sub.H.B. 119, the Fosters' property would now require the installation of a "mound system." Specifically, Dick commented:

The limiting layer for this lot rangers from 17" - 20". This lot will require a mound system. The home was already on the lot. Slope of the lot will limit areas where the mound system can be installed. An installer permit will be required.

         {¶ 14} On November 7, 2013, the Health Department issued an installation permit to the Fosters permitting them to install the previously approved mound system on their property. The installation of the approved mound system required the Fosters to purchase 86 tons of sand, sand which then had to be approved during an inspection by the Health Department before the mound system could be installed. According to Dick's testimony, prior to the Fosters purchasing the necessary sand, he and Mr. Foster had a meeting in his office where he informed Mr. Foster that "for the type of mound you're putting in, here's the sand we approve and here's where we get it, get it from them."

         {¶ 15} On November 15, 2013, an inspection was conducted on the Fosters' property. According to Dick, who conducted the inspection, the sand purchased by the Fosters was "the wrong sand. Homeowners told to replace sand." Specifically, as Dick testified during his deposition:

So I go out to the job and the sand doesn't look right. It doesn't look like the color it should be. So I asked him for sand tickets. He produces them and it's not from the place that we're supposed to get them from. So there we are.

         Not sure how to proceed, Dick testified he and Mr. Foster had "some back and forth about that" before ultimately agreeing that if the sand purchased by the Fosters passed a "sieve analysis" and a "jar test" that Dick would "pass the sand and we'll move on."

         {¶ 16} Seemingly coming to an agreement, it is undisputed that the sand purchased by the Fosters passed the "sieve analysis." However, as it relates to the "jar test, " Dick testified the sand was "way too dirty" in that it had "not been properly washed to meet what we require for a mound system." According to Dick, "[t]here's only a couple of things that really will screw up a mound system and dirty sand is one of them." In conducting the "jar test, " however, Dick testified that he did not use any tools to measure the sediment within the jar, only that he used his eye to tell that it was above the maximum sixteenth of an inch. As Dick testified, "I know a sixteenth of an inch when I see it and that was way above it." Dick also testified that "it was obvious it was more than a sixteenth of an inch." After concluding the sand had not passed the "jar test, " Dick failed the sand and informed the Fosters that they were prohibited from moving forward with the installation of the mound system on their property.

         {¶ 17} On July 8, 2014 and again on August 5, 2014, the Fosters filed with the Health Department requests for a variance; (1) the first of which requested a variance to install an aeration system with 350 feet of leach lines as recommended by Dan Michaels, a "soil scientist" the Fosters hired to conduct a site evaluation of their property; (2) whereas the second request asked the Health Department to honor the so-called "lifetime permit" the Fosters received on January 7, 2007 to "allow the septic as ...

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