Champion residents had complained about the nuisance issue.
WARREN -- A Trumbull County Board of Health decision to issue sewage disposal permits for some duplexes in Champion Township must be vacated, an appeals court says.
Evidence presented in the case shows that dumping sewage into a ditch causes an environmental concern.
The 11th District Court of Appeals ruled for the Ohio Environmental Protection Agency this week in the matter involving Jerre J. Hentosh Sr., the county health board and Ohio EPA.
On Jan. 17, 2002, Hentosh and his wife, Donah, acquired a 60-acre parcel in Champion Township. On March 18, 2002, they split the parcel into three parcels and smaller lots, including 673 and 683 Center Street West.
Duplexes were constructed on each lot. The owners applied to the county health board for permits that would authorize an off-lot household sewage disposal system to serve each duplex. An off-lot system disposes of household sewage by discharging it from the property into nearby water, where it is subsequently carried off.
Each of the three lots required an off-lot system to serve each six-_bedroom duplex because of the small size of the properties. Hearings on the applications occurred on Aug. 21, 2002, and Sept. 18, 2002.
Champion residents Linda Reese and Denise O'Shaughnessy asked that Hentosh Builders be required to increase the lot sizes to accommodate on-lot sewage disposal, where sewage is treated on the property and dissipates into the ground.
O'Shaughnessy testified that she had contacted the Ohio EPA concerning the fact that water was left pooling in the ditches causing odor and an increase in mosquitoes.
Frank Migliozzi, the county's director of environmental health, testified that he had not yet issued permits for the lots because of the nuisance issue. Migliozzi presented a letter to the health board from the EPA, which stated the off-lot sewage systems existing across the street were already creating a public nuisance.
Hentosh testified that he and his sons had built several homes in the area and had received permits in the past for off-lot sewage systems without a problem. Jason Earnhart, an assistant county prosecutor, testified to the need for off-lot sewage systems because the lots were too small to accommodate on-lot sewage disposal.
On Sept. 18, however, Earnhart read a letter from the Trumbull County Planning Commission, stating, "Mr. Hentosh has blatantly skirted the spirit of our regulations by creating 11 lots from a 60-acre parcel. ... This conduct is appalling and an affront to every law abiding citizen in the county."
Hentosh argued that the lots complied with the existing local requirements. The health board elected to issue the off-lot sewage disposal system permits for the three lots.
After the permits were issued, the EPA conducted several field tests of the ditches on state Route 305 and concluded the conditions were not in compliance with the Ohio Sanitation Code. The health board took the opinions under advisement but never stayed nor revoked the permits.
On Oct. 18, 2002, the EPA subsequently filed a notice of appeal of the health board's decision to issue the permits.
On July 22, 2003, Judge Andrew Logan of Trumbull County Common Pleas Court issued a judgment entry, in which it affirmed the health board's decision to issue the permits.
The EPA later appealed to the 11th District Court.
The appeals court did not address whether the local sewage regulations are less stringent than the state's and, thus, in violation of the Ohio Sanitary Code.
The appeals court concluded that the decision of the trial court is not supported by the evidence, and that the trial court abused its discretion in affirming the health board's decision to issue the permits for the off-lot sewage systems.
The appeals court reversed the common pleas court judgment and returned the matter to trial court to vacate the health board order.