Petition for Writ of Certiorari — Miller & Son Paving, Inc. v. Plumstead Township

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Supreme Court, U.S.

oer a.

98 832 NOV 171998

No.

In The

Supreme Court of the United States

October Term, 1998

MILLER AND SON PAVING, INC..,

Petitioner,

VS.

PLUMSTEAD TOWNSHIP,

BUCKS COUNTY, PENNSYLVANIA,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Pennsylvania, Eastern District

PETITION FOR WRIT OF CERTIORARI

STEPHAN B. HARRIS

Counsel of Record

HARRIS AND HARRIS, P.C.

Attorneys for Petitioner

1760 Bristol Road

P.O. Box 160

Warrington, PA 18976

(215) 343-9000

149653 €) Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 « (800) 359-6859

QUESTIONS PRESENTED

Did the Supreme Court of Pennsylvania decide an important

federal question in a way that conflicts with the relevant

decisions of your Honorable Court when it decided that a de

facto taking did not occur when a property owner was prevented

from using its property for a legitimate business purpose by a

zoning ordinance which unconstitutionally excluded the

business from the entire Township.

PARTIES TO THE PROCEEDING

The Petitioner is:

Miller and Son Paving, Inc.

The Respondent is:

Plumstead Township, Bucks County, Pennsylvania

TABLE OF CONTENTS

Cuppations Presented 2... ccc cess ccc cccsenses

Parties to the Proceeding ..........cccsscccccsees

ET I SS as beacuse 60 de aNeawke

Table of Cited Authorities ............ ccc ccccees

CID DONO cece cccetcevecvecescavucccedsss

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Constitutional Provisions Involved ................

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Reasons for Granting the Writ ....................

The Supreme Court Of Pennsylvania Decided An

Important Federal Question In A Way That

Conflicts With The Relevant Decisions Of Your

Honorable Court When It Decided That A De

Facto Taking Did Not Occur When A Property

Owner Was Prevented From Using Its Property

For A Legitimate Business Purpose By A Zoning

Ordinance Which Was _ Found To

Unconstitutionally Exclude The Business From

a SN BUI, dc b occ ad hc ceecee ess

aR Nor eer Ng LW as ee eae vos

TABLE OF CITED AUTHORITIES

Page

Cases:

Agins v. Tiburon, 447 U.S. 255, 65 L. Ed. 2d 106

CRUE Ke Gace esa ks Read ae OEE eee e reas 10, 22

Appeal of Doyle, 142 Pa. Cmwlth. 672, 598 A.2d 352

(1991), allocatur denied, 530 Pa. 657, 608 A.2d 32

CE ak hak £5 oe EE PRES CES KE ea 13

Appeal of Miller and Son Paving, Inc., 161 Pa. Cmwlth.

138, 636 A.2d 274 (1993), Petition for Allowance of

Appeal Denied, 538 Pa. 629, 646 A.2d 1182 (1994)

Pr eee eee May Chk Pe anes Se re PO Pe i Fea 3,14

Armstrong v. United States, 364 U.S. 40 (1960) ..... 15

Borough v. City Keene, 121 N.H. 590, 432 A.2d 15

COWES 605 40 ta Beak ha nL ae 17, 18 3

Corrigan v. City of Scottsdale, 149 Ariz. 538, 720 P.2d

Fhe OEE 5 pap ks bah ks An ieee 16, 17

DeBotton v. Marple Township, 689 F.2d 477 (3d. Cir.

SOOO) skin aie ck eka ky bass Cc tees Eee 21, 22

First English Evangelical Lutheran Church of Glendale

v. The County of Los Angeles, California, 482 U.S.

304, 96 L.. Ed. 26 250 (1987) ... 2 oa 4, 14, 15, 16, 23

Gaebel v. Thornbury Township, 8 Pa. Cmwlth. 339, 303 i

Padi OF RADIES. ok din eis caacaceas bens hare 12, 13

| ial

Cited Authorities

Page

Lawton v. Steele, 152 U.S. 133, 38 L. Ed. 385 (1894)

PEO EL OP RET COS CL Te AN ee pee Ee CE te ¥-

Legal Tender Cases, 12 Wall. 457 (1871) .......... 8

Lucas v. South Carolina Coastal Council, 550 U.S. 1003,

19D 1. Ba BE TOR ER a ae ra 8, 9, 11

Merlin v. Commonwealth, 72 Pa. Cmwlth. 45, 455 A.2d

FERNS G Sa 6 IGA AO 13

Millcreek Township v. N.E.A. Cross Company, 152 Pa.

Cmwilth. Ct. 576, 620 A.2d 558 (1993) .......... 7

Miller and Son Paving, Inc. v. Plumstead Township Board

of Supervisors, 62 Bucks Co. Law Rep. 254 (1993)

MS ees ARES ee 2

Miller and Son Paving, Inc. v. Plumstead Township,

(Bucks County Court of Common Pleas Docket No.

Ce) er # an | CRA er ep eke eee fanaa ay 4

Miller and Son Paving, Inc. v. Plumstead Township, Pa.

Cmwith. Ct. (unreported), 680 A.2d 5 (1996) ..... 4

Miller and Son Paving, Inc. v. Plumstead Township, 547

Pa SES, COO AD TE AIOE oi we aaa es 4

Miller and Son Paving, Inc. v. Plumstead Township, (19

E.D. Appeal Docket 1997, decided August 17, 1998)

Cited Authorities

Page

Mock v. Department of Environmental Resources, 154

Pa. Cmwith. 380, 623 A.2d 940 (1993) ..... abe 11

Odhner v. Township of Woodward, 143 Pa. Cmwith. 450,

SOO RAE ATO CAPUES 6 oka. 4 045.645 che one een 13, 14

PA Northwestern Distributors, Inc. v. Zoning Hearing

Board of the Township of Moon, 526 Pa. 186, 584 A.2d

ES7a CEO ED 6 6 6b Tebnedns de ynee senescent 22

Penn Central Transportation Co. v. New York City, 438

U.S. 104, $7 L. Ed. 2d 631 (1978) .............. 9,15

Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922) ... 5,8

Plumstead Township v. Miller and Son Paving, Inc., Pa.

Cmwith. (unreported), 661 A.2d 44 (1995) ....... 14

Poirier v. Grand Blanc Township, 167 Mich. App. 770,

423 H.W. SE SSE CROP i hae sss se Cigsdiieoast 16

Rippley v. City of Lincoln, 330 N.W. 2d 505 (N.D.

EGGS) o ciccdtcakckvesieb acer 16

Sheerr v. Evesham Township, 184 N.J. Super. 11, 445

A.2G 46 (UGBRS . co vc dh Catan ta tamu dentheoenans 16

Transportation Co. v. Chicago, 99 U.S. 635 (1879) .. 8

United Artists Theater Circuit, Inc. v. City of

Philadelphia, 535 Pa. 370, 635 A.2d 612 (1993) .. 9

vii

Cited Authorities

Page

Williamson County Regional Planning Commission v.

Hamilton Bank of Johnson City, 473 U.S. 170 (1985)

EE OSE ee Pes Ae Uy ee ey ope 14

Statutes:

rR oe Et Re Pe Pres Cy aaa sg l

Pennsylvania Eminent Domain Code, Act of June 22,

1964, Sp. Sess., P.L. 84, as amended, 26 P.S. 1-101,

fA ee Ey ee ree hoe ot Pee erty ene 4,12

Section 609.1 of the Pennsylvania Municipalities

Planning Code (the “MPC”), Act of December 21,

1988, P.L. 1329 No. 170, as amended, 53 P.S. 10609. 1

PSCC SRENOOMCDEATAS Pa ab wa ak haa taeebdsads 2

Pennsylvania Municipalities Planning Code, 53 P.S.

EONS Wak a Fe bi has boca aoe ius ebeaane 3

United States Constitution:

Foeeh SE 60 oak cue Sed aed a kee ben Waaed 1, 8, 21, 23

FTE COS EEE ORT Ee 2

Rule:

United States Supreme Court Rule 10 .............. 6

vili

APPENDIX

Page

Appendix A — Opinion Of The Supreme Court Of

Pennsylvania, Eastern District Decided August 19,

ROS ao crag cksos Sasa eres sss asda ee la

Appendix B — Opinion And Order Of The

Commonwealth Court Of Pennsylvania Filed June 21,

REP MrT Ee OL Leo pon tee Er eye re cee 9a

Appendix C — Opinion Of The Court Of Common Pleas

Of Bucks County, Pennsylvania Dated August 20,

NE sk ee ewe ad RO Nes PR eS 17a

OPINIONS BELOW

The August 19, 1998 Opinion of the Supreme Court of

Pennsylvania reversing the Order of the Commonwealth Court —

of Pennsylvania has not been reported as of the filing of this

Petition. It is reprinted in the Appendix at App. la. The June

21, 1996 Opinion of the Commonwealth Court of Pennsylvania

was not reported by the Commonwealth Court, see 680 A.2d 5

(1996). It is reprinted in the Appendix at App. 9a. The August

28, 1995 Opinion of the Court of Common Pleas of Bucks

County, Pennsylvania is reprinted in the Appendix at App. 17a.

STATEMENT OF JURISDICTION

Petitioner seeks review of the August 19, 1998 Order of

the Supreme Court of Pennsylvania that reversed the June 21,

1996 Decision of the Commonwealth Court of Pennsylvania

which affirmed the Order of the Court of Common Pleas of

Bucks County, Pennsylvania entered May 5, 1995 which

“Denied, Dismissed and Overruled the Township’s Preliminary

Objections” to Petitioner’s Petition for the Appointment of a

Board of Viewers. Jurisdiction of this Court to review the

judgment of the Supreme Court of Pennsylvania is invoked

under 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment of the United States Constitution,

which provides:

No person ... shall be .. . deprived of life liberty

or property without due process of law; nor shall

private property be taken for public use without just

compensation.

—

The Fourteenth Amendment of the United States

Constitution, which provides:

[N]or shall any State deprive any person of life,

liberty, or property, without due process of law.

STATEMENT OF THE CASE

In June, 1988, Petitioner, Miller and Son Paving, Inc.

(hereinafter referred to as “Petitioner” or “Miller”) acquired a

150-acre tract of land located in Plumstead Township, Bucks

County, Pennsylvania (hereinafter referred to as “Respondent”

or “Township”) for a quarry. The Plumstead Township Zoning

Ordinance in effect at the time unconstitutionally excluded

quarrying from the entire Township. Therefore, Petitioner filed

a Curative amendment application with Respondent seeking to

declare its Zoning Ordinance unconstitutional pursuant to

Section 609.1 of the Pennsylvania Municipalities Planning Code

(the “MPC”), Act of December 21, 1988, P.L. 1329 No. 170,

as amended, 53 P.S. 10609.1. A “Curative Amendment” is the

manner in which the substantive validity of a zoning ordinance

is challenged in Pennsylvania.

After 46 monthly hearings, The Board of Supervisors of

Plumstead Township denied Petitioner’s curative amendment

application. Petitioner filed an appeal to the Court of Common

Pleas of Bucks County, Pennsylvania. A panel of three Judges,

President Judge Kenneth G. Biehn, the Honorable Isaac S. Garb

and the Honorable Edward G. Biester, Jr., unanimously declared

the Ordinance unconstitutional but denied site specific relief,

i.e. the right to quarry the property.' A timely appeal was

perfected to the Commonwealth Court of Pennsylvania, which

affirmed the Court of Common Pleas insofar as it declared the

1. Miller and Son Paving, Inc. v. Plumstead Township Board of

Supervisors, 62 Bucks Co. Law Rep. 254 (1993).

Ordinance unconstitutional, but reversed the denial of site

specific relief and granted Petitioner the right to quarry its

property.” The Commonwealth Court remanded the case to the

Court of Common Pleas pursuant to Section 1006-A(c) of the

MPC, 53 P.S. 11006-A(c) to determine the extent of the relief

to which Petitioner was entitled. Respondent and the Plumstead

Township Civic Association filed a Petition for Allowance of

Appeal to the Supreme Court of Pennsylvania which was

denied.

During the course of the curative amendment hearings,

Petitioner applied for and was granted all of the permits from

all of the state administrative agencies which are necessary for

Petitioner to quarry the prcperty. At the time these permits were

received, Petitioner could have commenced quarrying the

property but for the unconstitutional exclusion of quarrying by

the Respondent’s Zoning Ordinance.

Following the decision of the Supreme Court of

Pennsylvania denying the Respondent and the Civic

Association’s Petitions for Allowance of Appeal, Petitioner

filed a Petition for Appointment of a Board of View in the Court

of Common Pleas of Bucks County, Pennsylvania in order to

have damages assessed for the de facto temporary taking of its

property during the period of time it was challenging the

constitutionality of the Zoning Ordinance. On January 24, 1994,

the Honorable Kenneth G. Biehn, President Judge, granted

Petitioner’s Petition and appointed a Board of View to assess

damages. Thereafter, Respondent filed Preliminary Objections

challenging the appointment of the Board of View.

On May 5, 1995, following submission of legal memoranda

by the parties and oral argument, the Honorable Cynthia M.

2. Appeal of Miller and Son Paving, Inc., 161 Pa. Cmwith. 138,

636 A.2d 274 (1993), Petition for Allowance of Appeal Denied, 538 Pa.

629, 646 A.2d 1182 (1994).

Weaver dismissed the Respondent’s Preliminary Objections.

Judge Weaver found that the unconstitutional zoning ordinance

was a taking of Petitioner's property because, “but for the

unconstitutional zoning ordinance, the land would have been

mined by Miller.” Therefore, the Court concluded as a matter

of law, that Miller established a compensable, temporary de

facto taking for the period between the date the property was

purchased and the date the zoning ordinance was invalidated.’

The Commonwealth Court of Pennsylvania affirmed the denial

of the Preliminary Objections‘. It relied on your Honorable

Court’s Decision in First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles, 482 U.S. 304 (1987) for

the proposition that Miller was not precluded from bringing an

action under the Pennsylvania Eminent Domain Code, Act of

June 22, 1964, Sp. Sess., P.L. 84, as amended, 26 P.S. 1-101,

et seq. for damages that it suffered during the period of the

taking. Thereafter, the Respondent’s Petition for Allowance of

Appeal was granted by the Supreme Court of Pennsylvania°

and the Supreme Court of Pennsylvania subsequently reversed

the Commonwealth Court and sustained the Respondent’s

preliminary objections®. This Petition follows.

3. Miller and Son Paving, Inc. v. Plumstead Township, (Bucks

County Court of Common Pleas Docket No. 94-00389-22-5) see

Appendix C at App. 17a.

4. Miller and Son Paving, Inc. v. Plumstead Township, Pa. Cmwlth.

Ct. (unreported), 680 A.2d 5 (1996) see Appendix B at App. 9a.

5. Miller and Son Paving, Inc. v. Plumstead Township, 547 Pa.

383, 690 A.2d 711 (1997).

6. Miller and Son Paving, Inc. v. Plumstead Township, (19 E.D.

Appeal Docket 1997, decided August 17, 1998) (presently unreported).

See Appendix A at App. la.

REASONS FOR GRANTING THE WRIT

THE SUPREME COURT OF PENNSYLVANIA DECIDED

AN IMPORTANT FEDERAL QUESTION IN A WAY

THAT CONFLICTS WITH THE RELEVANT DECISIONS

OF YOUR HONORABLE COURT WHEN IT DECIDED

THAT A DE FACTO TAKING DID NOT OCCUR WHEN

A PROPERTY OWNER WAS PREVENTED FROM

USING ITS PROPERTY FOR A LEGITIMATE BUSINESS

PURPOSE BY A ZONING ORDINANCE WHICH WAS

FOUND TO UNCONSTITUTIONALLY EXCLUDE THE

BUSINESS FROM THE ENTIRE TOWNSHIP.

This case presents your Honorable Court with the question

of whether a landowner suffers a de facto taking of its property

where a zoning ordinance unconstitutionally prevents a

landowner from using its property for a lawful business purpose

throughout the entire municipality.

In 1922, Justice Oliver Wendell Holmes coined the oft-

cited maxim that, “While property may be regulated to a certain

extent, if a regulation goes too far, it will be recognized as a

taking.” Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922).

While your Honorable Court and many other courts around the

country have had difficulty in identifying when an ordinance

goes too far, certainly, it must be conceded by all that an

ordinance that is declared unconstitutional because it unlawfully

prevents the use of a person’s property for a legitimate business

purpose is a regulation that goes too far. As a regulation that

goes too far, it must be recognized as a taking. Therefore, when

the Supreme Court of Pennsylvania found that a “compensable

taking does not result from a-zoning ordinance which is

ultimately declared invalid,” see-App. 2a, it decided an

important federal question in a way that was not consistent with

the prior decisions of your Honorable Court and therefore,

pursuant to Rule 10 of the Rules of the United States Supreme

Court, your Court should exercise its discretion and grant this

Writ of Certiorari.

The question presented to your Honorable Court is strictly

a matter of law. Judge Weaver of the Court of Common Pleas

of Bucks County succinctly reviewed the standard by which

Preliminary Objections to a Petition for the Appointment of

Viewers are reviewed by Pennsylvania courts. She noted:

Preliminary Objections in the context of eminent

domain actions serve a broad purpose intended to

resolve both factual a-d legal challenges. North

Penn Water v. A Certain Parcel of Land Identified

By Last Known Owner and Tax Parcel Number as

Michael H. Malin and Dorothy Seimel Malin, 168

Pa. Cmwlth. 477, 650 A.2d 1197, 1201 (1994). The

proper mode of challenging a petition for

appointment of viewers filed by condemnee is by

preliminary objections. /n Re: Condemnation by

Com., Dept. of Trans., 112 Pa. Cmwlth. 368, 535

A.2d 1210 (1988), appeal denied, 519 Pa. 655, 546

A.2d 60. An order dismissing preliminary objections

to a petition for appointment of viewers under the

Eminent Domain Code is a final appealable order

that will not be overturned absent abuse of discretion

or error of law by the trial court. Riedel v. County

of Allegheny, 159 Pa. Cmwith. 583, 633 A.2d 1325

(1993).

The Eminent Domain Code authorizes filing of a

petition for appointment of viewers when there has

been no declaration of taking filed by the

condemnor. Millcreek Tp. v. N.E.A. Cross Co., 152

Pa. Cmwith. 576, 620 A.2d 558 91993), appeal

denied, 537 Pa. 655, 644 A.2d 739. When a petition

for a board of viewers alleges a de facto taking and

preliminary objections are thereafter filed, an

evidentiary hearing is not necessary if an issue of

fact is not raised. Jd. When no disputed factual issue

exists and the issues before the trial court are purely

legal, preliminary objections may be ruled upon

without a hearing. 26 P.S. Section 1-504; Millcreek

Tp., 152 Pa. Cmwlth. 576, 620 A.2d at 588; Miller

v. Com. Dept. of Transp., 91 Pa. Cmwlth. 622, 498

A.2d 1370 (1985).

Upon review of Miller’s Petition, Judge Weaver determined

that “a cause of action for compensable injury by reason of a

temporary de facto taking existed and that only legal issues

remained to be resolved.” App. 21a. Therefore, as no disputed

factual issues existed and as the issues before the Court were

purely legal, Judge Weaver ruled upon the Preliminary

Objections without a hearing in accordance with the procedure

outlined in Millcreek Township v. N.E.A. Cross Company, 152

Pa. Cmwlth. Ct. 576, 620 A.2d 558 (1993) and denied the

Preliminary Objections as a matter of law. The Commonwealth

Court of Pennsylvania agreed that no questions of fact were

presented and affirmed the decision of the Court of Common

Pleas as a matter of law. The Supreme Court of Pennsylvania

also considered the issue as purely a matter of law although it

reversed the decision and granted the Preliminary Objections.

As noted above, it is difficult and at times impossible to

draw a sharp line between valid or constitutional zoning on

one hand, which does not constitute a taking even though it

restricts the use to which a person may make of his land, and

illegal or unconstitutional zoning on the other hand which

unlawfully restricts a property owner from using his land and

amounts to a taking. However, when the line is crossed and

there is a judicial determination that a zoning ordinance is

unconstitutional, a taking occurs which gives a landowner the

opportunity to seek damages for interference with his

constitutionally guaranteed right to use his or her property

unfettered by an unconstitutional governmental restriction. In

this circumstance, the question of whether there is a taking is

purely a question of law which is answered in the affirmative

when an ordinance is declared unconstitutional.

Prior to Justice Holmes’ exposition in Pennsylvania Coal

Co. v. Mahon, supra, it was generally thought that the takings

clause of the Fifth Amendment reached only a direct

appropriation of property, Legal Tender Cases, 12 Wall. 457,

551 (1871), or the functional equivalent of a “practical ouster

of the [owners] possession”. Transportation Co. v. Chicago,

99 U.S. 635, 642 (1879). However, as your Honorable Court

pointed out in Lucas v. South Carolina Coastal Council, 550

U.S. 1003, 120 L. Ed. 2d 798 (1992):

“Justice Holmes recognized in Mahon, however, that

if the protection against physical appropriation of

private property was to be meaningfully enforced,

the government’s power to redefine the range of

interests included in the ownership of property was

necessarily constrained by the constitutional limits.

260 U.S., at 414-415. If, instead, the uses of private

property were subject to unbridled, uncompensated

qualification under the police power, ‘the natural

tendency of human nature [would be] to extend the

qualification more and more until at last private

property disappear[ed]’ Id., at 415. These

considerations gave birth in that case to the oft-cited

maxim that, ‘while property may be regulated to a

certain extent, if regulation goes too far, it will be

recognized as a taking.’ Ibid.” (Emphasis added).

An unconstitutional zoning ordinance must, by definition,

be a regulation that “goes too far”. Because it goes too far, it is

a taking. And, as Judge Weaver noted in her opinion denying

the Respondent’s Preliminary Objections:

The Petition submitted by Miller conclusively

established that, but for Township’s unconstitutional

zoning ordinance, the land would have been mined

by Miller. As Miller was precluded from using the

land as a quarry during the period the ordinance was

being challenged, a compensable de facto taking

occurred as a matter of law.

App. 22a.

The Supreme Court of Pennsylvania found that no taking

occurred because Miller was not denied all use of its property

during its challenge to Plumstead Township's zoning

ordinance.’ In reaching this conclusion, the Supreme Court of

Pennsylvania failed to distinguish between those cases where

the Court is attempting to determine whether or not a regulation

goes too far, See e.g. United Artists Theater Circuit, Inc. v.

City of Philadelphia, 535 Pa. 370, 635 A.2d 612 (1993); Penn

Central Transportation Co. v. New York City, 438 U.S. 104, 57

L Ed. 2d 631 (1978); Lucas v. South Carolina Coastal Council,

7. Although the Supreme Court of Pennsylvania holds that Miller

could have used its property for residential purposes, i.e. build a housing

development while it was challenging the zoning ordinance, it did not

explain how Petitioner could use its property for a quarry once its

challenge to the constitutionality of the zoning ordinance was sustained

if it had previously developed its land for housing. In order for

Petitioner's right to challenge an Ordinance to be meaningful, Petitioner

must be able to use the property for the purpose for which it challenges

the Ordinance if the challenge is successful. Therefore, Miller was not

required to put its property to some other use while it challenged the

ordinance which illegally prevented its lawful use as a quarry.

supra. and those cases, such as the instant case, where the

regulation has already been found unconstitutional, i.e. has been

found to go too far. The distinction is clearly stated in your

Honorable Court’s decision in Agins v. Tiburon, 447 U.S. 255,

260, 65 L. Ed. 2d 106 at 112 (1980) as follows:

The application of a general zonimg law to particular

property affects a taking if the ordinance does not

substantially advance legitimate state interests, or

denies an owner economically viable use of his land

(citation omitted).

It is an “either/or” test to determine whether a taking has

occurred. Either the ordinance does not advance legitimate state

interests, and a finding that a zoning ordinance is

unconstitutionally exclusionary is a per se finding that the

ordinance does not advance legitimate state interests, or the

ordinance denies an owner of all economically viable use of its

land in which case it is invalid even if it advances a legitimate

state interest. These tests are mutually exclusive; but in either

case there 1s a taking.

The question of whether an ordinance denies all

economically viable use of a property owner’s land is a test to

determine an ordinance’s validity. It is not applicable where

general zoning law provides a property owner an independent

remedy to determine if an ordinance in invalid. Therefore, it is

not applicable to the present case.

Paraphrasing Agins, the application of a Township’s zoning

ordinance to a particular property affects a taking when the

ordinance is found to be unconstitutionally exclusionary. The

taking is automatic. It flows from the finding that the

ordinance’s restriction of the lawful use of a person’s property

does not advance legitimate state interests. Once this finding

is made, a taking has occurred and the case then moves forward

to determine what damages flow from that taking.

Former President Judge Craig speaking for the

Commonwealth Court of Pennsylvania in Mock v. Department

of Environmental Resources, 154 Pa. Cmwlth. 380, 623 A.2d

940 (1993) recognized the distinction between the Lucas

analysis which seeks to determine whether or not a regulation

is a taking because it denies all economically beneficial use of

the land, and the traditional takings analysis. He noted:

Although we have determined that the Mock case is

not the extraordinary one when no economically

beneficial use of land is permitted [citing Lucas],

we must still evaluate the situation under the

principles of [traditional] takings analysis

established by previous court decisions.

Judge Craig began the Court’s analysis by referring back to

Lawton vy. Steele, 152 U.S. 133, 38 L. Ed. 385 (1894) in which

your Honorable Court provided a three (3) part test for

determining the validity of a state’s action under its police

power;

(1) the public interest must require such interference;

(2) the means chosen must be reasonably necessary for

the accomplishment of the purpose; and

(3) the means chosen must not be unduly oppressive on

individuals.

In Mock, the Commonwealth Court of Pennsylvania was

required to engage in this analysis because there was no

independent judicial forum in which to determine whether or

not the regulation in question was invalid. By contrast, in the

instant case the MPC provides an independent procedure by

which the validity of the ordinance is determined prior to the

taking claim being asserted. Once the determination is made

pursuant to the curative amendment process that the ordinance

is unconstitutional, there is a per se violation of the three (3)

part test as first enunciated by the United States Supreme Court

in Lawton in 1894. First, there can be no interests of the general

public in adopting and enforcing an unconstitutional zoning

ordinance. Second, an unconstitutional zoning ordinance can

never supply reasonable means for the accomplishment of a

lawful purpose, in this case, the exclusion of quarrying from

Plumstead Township. Finally, an unconstitutional zoning

ordinance is unduly oppressive upon the property owner as it

prevents the property owner from making a lawful use of its

property.

The Supreme Court of Pennsylvania's decision in this case

that a taking did not occur is inconsistent with its own decisions.

Heretofore, Pennsylvania Courts have uniformly held that a

property owner cannot challenge the constitutionality of a

zoning ordinance under the provisions of the Pennsylvania

Eminent Domain Code, the Act of June 22, 1964, Sp. Sess.,

P.L. 84, as amended, 26 P.S. 1-101, ef seg. until a zoning

ordinance has been found to be invalid. For example, in Gaebe/

v. Thornbury Township, 8 Pa. Cmwith. 339, 303 A.2d 57 (1973),

the Gaebels owned property which was rezoned as a floodplain,

severely limiting the use of their land. They filed an action

under the Eminent Domain Code before challenging the validity

of the ordinance pursuant to the MPC. Preliminary Objections

were sustained to their Petition for the Appointment of Viewers.

The Gaebels appealed the decision to the Commonwealth Court

which held:

What we decide today is that Gaebels exclusive

recourse is to challenge the constitutionality of . . .

Pe ee ere ee ee

[the] zoning ordinance under the provisions of

review established by the MPC, and they cannot, af

this time, avail themselves of compensation under

the provisions of the Eminent Domain Code.

(Emphasis added). /d. at 403, 303 A.2d at 60. The Gaebels could

not proceed to seek damages under the Eminent Domain Code

because the ordinance had not been declared unconstitutional.

However, once the ordinance was declared unconstitutional,

as in the case before your Honorable Court, the Gaebels could

proceed to bring their action under the Eminent Domain Code

for damages. Accord, Merlin v. Commonwealth, 72 Pa. Cmwith.

45, 455 A.2d 789 (1983).

The Commonwealth Court of Pennsylvania reached a

similar decision in Appeal of Doyle, 142 Pa. Cmwith. 672, 598

A.2d 352 (1991), allocatur denied, 530 Pa. 657, 608 A.2d 32

(1991). In Doyle, the property owners challenged the denial of

a subdivision plan. They initially brought an action challenging

the denial of the plan under the MPC. While that action was

pending, they also filed an action under the Eminent Domain

Code. Judge Ward F. Clark of the Court of Common Pleas of

Bucks County, Pennsylvania sustained the Township's

Preliminary Objections to the landowner’s Petition for the

Appointment of a Board of View holding

consistent with Gaebel, we hold that Respondents

must first exhaust their remedies under the MPC

before they can bring an action for inverse

condemnation under the Eminent Domain Code.

Appeal of Doyle, 142 Pa. Cmwith. at 677, 598 A.2d at 354.

Accord, Odhner v. Township of Woodward, 143 Pa. Cmwith.

450, 599 A.2d 276 (1991) (“. . . until the landowner has pursued

the remedies provided within the MPC to invalidate the

ordinance, a compensation claim for the temporary taking is

not ripe’’).

In the case before your Honorable Court, the Petitioner

has followed the appropriate procedure in Pennsylvania by first

proceeding under the MPC to have the ordinance declared

unconstitutional and then proceeding under the Eminent

Domain Code for damages.* Per the Odhner decision, under

Pennsylvania Law, the claim for the temporary taking is now

ripe. Williamson County Regional Planning Commission vy.

Hamilton Bank of Johnson City, 473 U.S. 170 (1985).

Your Honorable Court’s decision in First English

Evangelical Lutheran Church of Glendale v. The County of Los

Angeles, California, 482 U.S. 304, 96 L. Ed. 2d 250 (1987)

observed that: :

Invalidation of the ordinance or its successor

ordinance after this period of time, although

converting the taking into a ‘temporary one’, is not

a sufficient remedy to meet the demands of the just

compensation clause.’

8. The litigation concerning whether Miller was entitled to a

blacktop plant and redi-mix concrete plant in addition to the quarry,

Plumstead Township v. Miller and Son Paving, Inc., Pa. Cmwlth.

(unreported), 661 A.2d 44 (1995) concluded after the Petition for the

Appointment of a Board of View was filed. However, it only decided

the scope of the site specific relief to which Appellee was entitled and

hence is only relevant to the damages to which Appellee is ultimately

entitled. Appellee did not apply for the Board of View until the Plumstead

Township Zoning Ordinance had been found unconstitutional in Appeal

of Miller and Son Paving, Inc., 161 Pa. Cmwlth. 138, 636 A.2d 161

(1993), allocatur denied, 538 Pa. 629, 646 A.2d 1182 (1994).

9. The First English Court specifically held that when a

government's activities work a taking, no subsequent action by the

(Cont'd)

PG Nth

BIE nro

Nonetheless, the Supreme Court of Pennsylvania in

footnote 4 to its Opinion, App. 6a, seems to argue that it is

somehow unfair to impose damages on a Township that is

defending its unconstitutional zoning ordinance. Initially, we

note that if it is brought to a municipality’s attention that it has

enacted an unconstitutional zoning ordinance, the municipality

has the obligation to promptly correct the ordinance, not to

attempt to delay the inevitable by endless court challenges.

Miller consumed eight (8) years obtaining the right to quarry

its property despite the seemingly endless cfforts of the

Township to prevent it from opening its quarry.

The Petitioner should not be required to bear the cost of

challenging the invalid ordinance, suffer the cost of carrying

the property during the course of the challenge and accept the

loss of profits from the property while it challenges an

unconstitutional zoning ordinance. As your Honorable Court

observed in First English, citing with approval Armstrong v.

United States, 364 U.S. 40 (1960) and Penn Central

Transportation Co. v. New York City, supra., “It is axiomatic

that the Fifth Amendment’s just compensation provision is

‘designed to bar government from forcing some people along

to bear public burdens, which in all fairness and justice, should

be borne by the public as a whole’.” As your Honorable Court

has noted in First English, it is the public’s burden to pay the

costs of unconstitutional restrictions placed on the use of

property by the Township.

Cont'd

erence Bie can relieve it of the duty to provide compensation for the

period during which the taking was effective. After reaching this result,

your Honorable Court remanded the case to California to determine

whether or not the ordinance involved was invalid. Ironically, the

Appellant had never challenged the validity of the land use regulation

in the California Courts, a practice that would not be permitted in

Pennsylvania.

The Petitioner is not seeking to make the “most profitable

use” of its property as is stated by the Supreme Court of

Pennsylvania, App. at 6a. Frankly, Petitioner does not know

what the most profitable use of its property is. It simply wanted

to make use of its property as a quarry for its construction

business. Quarrying was not a use that was permitted

somewhere else in the Township, but not permitted in the

district where Respondent wished to open the quarry. Rather,

it was a use that was totally prohibited anywhere in the

Township. For that reason, the ordinance was declared

unconstitutional and Petitioner was permitted to use its property

as a quarry. However, achieving the eventual right to use its

property as a quarry did not make Petitioner whole. Petitioner

was injured by not being able to use its property for a lawful

use until it was successful in challenging the constitutionality

of the Township’s zoning ordinance. Therefore, it should be

permitted to recover its losses during the period it was

challenging the unlawful zoning ordinance. As your Honorable

Court observed in First English, the granting of site specific

relief which follows the finding that Petitioner was

unconstitutionally prevented from using its property converts

the taking to a temporary one but does not provide a sufficient

remedy to meet the demands of the just compensation clause.

Each State that has considered the issue has found that

temporary takings are compensable in the zoning context. See

Corrigan v. City of Scottsdale, 149 Ariz. 538, 720 P.2d 513

(1986); Rippley v. City of Lincoln, 330 N.W. 2d 505 (N.D.

1983); Sheerr v. Evesham Township, 184 N.J. Super. 11, 445

A.2d 46 (1992), Poirier v. Grand Blanc Township, 167 Mich.

App. 770, 423 N.W. 2d 351 (1988). The Poirier court

recognized that a zoning ordinance can destroy the use and

enjoyment of property just as effectively as a formal

condemnation. The court noted:

The First English Court rejected the argument that

the only remedy is to challenge the regulation. That

the right to compensation should not depend on

whether the taking was accomplished by police

power or by Eminent Domain is supported by the

following language in Schwartz v. City of Flint, 426

Mich. 295, 395 N.W. 2d 678 (1996): “Police power

regulations such as zoning ordinances and other land

use restrictions can destroy the use and enjoyment

of property to promote the public good just as

effectively as formal condemnation or a physical

invasion of property ...” /T]/he Constitution

measures a taking of property not by what a state

says or by what it intends, but by what it does.

(Emphasis added).

The Supreme Court of Arizona reached the same result in

Corrigan v. City of Scottsdale, supra, holding that a landowner

having obtained a declaration that a zoning ordinance was

unconstitutional was not only entitled to an invalidation of the

ordinance, but was also entitled to money damages for the time

between the taking and the invalidation of the ordinance based

on the actual losses sustained. The Court quoted with approval

Borough v. City Keene, 121 N.H. 590, 432 A.2d 15 (1981) in

which the Court observed that:

limiting the landowner to actions which only

invalidate an offending regulation will encourage

municipal planners and other public officials to

attempt to throw the burdens accompanying

“progress” upon individual landowners rather than

the public at large. The allowance of damages . . .

during the period of the taking, however, should

encourage such officials to stay well on the

constitutional side of the line...

Id. 121 N.H. at 599, 432 A.2d at 20.

The Corrigan Court also analyzed the arguments generally

made by municipalities attempting to avoid the imposition of

damages when an ordinance is found to be unconstitutional. In

a very thorough analysis, the Court explained:

We note that the reasons generally given for denying

damages are that: (1) it usurps a legislative function;

(2) it threatens substantial fiscal liability on local

governments; and (3) it would inhibit governmental

land planning. Note, Just Compensation or Just

Invalidation: The Availability of a Damages Remedy

in Challenging Land use Regulations, 29 UCLA

L.Rev. 711, 725 (1982). See also Wright, Damages

or Compensation for Unconstitutional Land Use

Regulations, 37 Ark.L.Rev. 612, 643-644 (1983).

We believe these reasons do not justify such a rule.

First, since zoning is an exercise of the police power,

it is often deemed a legislative function. Davis v.

Pima County, 121 Ariz. at 345, 590 P.2d at 461;

Note, supra at 725. Thus some argue that the

awarding of damages deprives the legislative body

of being the one to decide whether the regulation is

appropriate in light of the fact that compensation

will be paid. Such an argument misses the point.

No legislative prerogative is usurped by awarding

damages for the time the property was temporarily

taken under an invalid zoning ordinance. The

regulating body can still weigh all the relevant

considerations and determine for itself how best to

effectuate its policy in the future. The same

alternatives are open to them after a remedy of

invalidation plus temporary damages as exist after

invalidation alone. The legislative body may pay to

acquire the land outright, agree to pay the landowner

a certain amount in order to continue the regulation,

or simply abandon the regulation altogether. All that

is added by an award of temporary damages is that

the landowner is compensated for losses that he has

already suffered by virtue of the unconstitutional

taking. See San Diego Gas & Elec. v. City of San

Diego, 450 U.S. at 656-657, 101 S.Ct. at 1306; Note,

supra at 725-729.

Second, fears of fiscal liability did not stop courts

from limiting or abolishing municipal sovereign

immunity and likewise should not bar a person’s

constitutionally guaranteed compensation for the

impermissible taking of his property. Id. at 726-727.

Further, fiscal liability may be an incentive for

responsible public planning. In this we note that a

local government will not be liable for any

substantial liability unless it irresponsibly imposed

staggering losses onto a private citizen by its land

regulation. D. Hagman, Temporary or Interim

Damages Awards in Land Use Control Cases, in

1982 Zoning and Planning Law Handbook 201

(F.Strom.ed. 1982) (also found in Zoning &

Plan.L.Rep. v. 4, n. 6 (June, 1981).

Finally, we do not believe that advocating

responsible governmental planning is the same thing

as inhibiting governmental planning. Public officials

should consider their actions before enacting them.

Mere invalidation does not provide an incentive for

public planners not to experiment at an individual

property owner’s expense. Neither does invalidation

provide any deterrent impact; instead the city can

and often does enact another similarly restrictive

regulation and force the landowner to undergo

another costly litigation battle. (FN2) Without

damages remedy, invalidation alone is a toothless

tiger “capable of great roars about constitutional

property rights but ineffectual in guarding against

even obvious excesses resulting from multiple

regulation.” Note, supra at 734.

FN2. We borrow a portion of a footnote from Justice

Brennan’s dissent in San Diego Gas & Elec. v. City

of San Diego because of its obvious relevance:

Invalidation hardly prevents enactment of

subsequent unconstitutional regulations by the

governmental entity. At the 1974 annual conference

of the National Institute of Municipal Law Officers

in California, a California City Attorney gave fellow

City Attorneys the following advice:

“IF ALL ELSE FAILS, MERELY AMEND THE

REGULATION AND START OVeR AGAIN.”

If legal preventive maintenance does not work, and

you still receive a claim attacking the land use

regulation, or if you try the case and lose, don’t

worry about it. All is not lost. One of the extra

“goodies” contained in the recent [California]

Supreme Court case of Selby v. City of San

Buenaventura, 10 C.3d 110, [109 Cal.Rptr. 799, 514

P.2d 111] appears to allow the City to change the

regulation in question, even after trial and judgment,

make it more reasonable, more restrictive, or

whatever, and everybody starts over again.

“See how easy it is to be a City Attorney. Sometimes

you can lose the battle and still win the war. Good

luck.” Longtin, Avoiding and Defending

Constitutional Attaches on Land Use Regulations

(Including Inverse Condemnation), in 388 NIMLO

Municipal Law Review 192-193 (1975) (emphasis

in original). San Diego Gas & Electric Co. v. City

of San Diego, 450 U.S. at 656, n. 22, 101 S.Ct. at

1306, n. 22 (BRENNAN, J., dissenting).

The policy reasons in favor of denying damages are

not persuasive. Governmental entities should be as

mindful of a person’s constitutional rights as anyone

else. Therefore, under our constitutional provision

requiring a payment of money for an

unconstitutional taking of a person's property, we

hold that invalidation is not the sole remedy, and

the landowner is entitled to money damages from

the time the regulation was protested or challenged.

Statements in Davis which prohibit any recovery of

money damages for a regulatory taking, by a

confiscatory zoning ordinance, are overruled.

(Emphasis added)

DeBotton v. Marple Township, 689 F.2d 477 (3d. Cir.

1988) does not require a different result. In DeBotton, Judge

Gawthrop of the United States Court of Appeals for the Third

Circuit held that the Township’s denial of a property owner’s

curative amendment challenge to a zoning ordinance does not

constitute a taking for Fifth Amendment purposes. By contrast,

in the instant case the curative amendment was granted, the

ordinance was found to be unconstitutional, i.e. it was found to

go too far, and therefore a taking occurred. In DeBotton, there

was no finding that Marple Township’s zoning ordinance was

invalid which is a prerequisite to a takings claim. Furthermore,

the Court in Footnote No. | recognized that Mr. DeBotton could

not have brought an action in state court for inverse

condemnation because Pennsylvania, at the time, did not

recognize regulatory takings. Furthermore, Judge Gawthrop did

permit Mr. DeBotton to maintain a claim for damages under

the theory that he was denied substantive and procedural due

process as a result of the Township’s refusal to hold hearings

on his curative amendment. Therefore, Mr. DeBotton had his

day in court in which he was permitted to seek damages even

though under the facts of the case it was not a classic taking

situation. Furthermore, DeBotton is distinguishable from the

instant case because Pennsylvania has now recognized

temporary takings in the zoning context in PA Northwestern

Distributors, Inc. v. Zoning Hearing Board of the Township of

Moon, 526 Pa. 186, 584 A.2d 1372 (1991) and as noted above,

in the instant case, there has been a specific finding that the

ordinance in question was unconstitutional.

In summary, a zoning ordinance which has been found

unconstitutional results in an automatic taking. A zoning

ordinance which has been declared unconstitutional, in the

words of Justice Oliver Wendell Holmes, is a regulation which

goes too far and is therefore, a taking. It is a taking because it

does not substantially advance legitimate state interests, Agins,

supra.

The finding that there has been a taking allows a property

owner to seek damages for the actual losses which it has suffered

as a result of the unconstitutional zoning ordinance. It is the

traditional “but for” test which was initially set forth by Judge

Weaver in the Court of Common Pleas of Bucks County as

follows:

The Petition submitted by Miller conclusively

established that but for the Township’s

unconstitutional zoning ordinance, the land would

have been mined by Miller. As Miller was precluded

from using the land as a quarry during the period

the ordinance was being challenged, a compensable

de facto taking occurred as a matter of law.

(Emphasis added)

As your Honorable Court recognized in First English, an

invalidation of an unconstitutional zoning ordinance simply

converts the taking to a temporary one, it does not provide a

remedy sufficient to meet the demands of the compensation

clause of the Fifth Amendment of the United States

Constitution.

Therefore, the declaration that Plumstead Township’s

zoning ordinance was unconstitutional resulted in an automatic

de facto taking. The Decision of the Pennsylvania Supreme

Court that a compensable taking does not result when a property

owner is found to have been prevented from making a lawful

use of its property by a zoning ordinance which is ultimately

declared invalid is inconsistent with the Decisions of your

Honorable Court. Therefore, this Petition shoulc be granted.

Petitioner should be given the opportunity to prove those

damages which it would not have incurred but for the invalidity

of the zoning ordinance which prevented the lawful use of its

property.

CONCLUSION

For the reasons stated above, the Petitioner requests your

Honorable Court to grant the Petition for a Writ of Certiorari.

Respectfully submitted,

STEPHAN B. HARRIS

Counsel of Record

HARRIS AND HARRIS, P.C.

Attorneys for Petitioner

1760 Bristol Road

P.O. Box 160

Warrington, PA 18976

(215) 343-9000

APPENDIX

APPENDIX A — OPINION OF THE SUPREME COURT

OF PENNSYLVANIA, EASTERN DISTRICT

DECIDED AUGUST 19, 1998

{| J-176-1997]

THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

19 E.D. Appeal Docket 1997

MILLER AND SON PAVING, INC.,

Appellee

¥.

PLUMSTEAD TOWNSHIP,

BUCKS COUNTY, PENNSYLVANIA

Appellant

Appeal from the Order of the Commonwealth Court dated June

21, 1996, at 1341 C.D. 1995, affirming the Order of the Bucks

County Common Pleas Court dated May 5, 1995, at

94-000389-22-5

ARGUED: October 21, 1997

OPINION

MR. JUSTICE ZAPPALA DECIDED: AUGUST 19, 1998

We granted allocatur to determine whether the

Commonwealth Court erred in holding that a township zoning

Appendix A

ordinance, which was found unconstitutional due to its

exclusion of quarrying as a permitted use, automatically

effected a compensable temporary de facto taking of the

landowner’s property. For the reasons that follow, we reverse

the order of the Commonwealth Court and hold that a per se

compensable taking does not result from a zoning ordinance

which is ultimately declared invalid.

On June 17, 1998, Miller and Son Paving, Inc., (Miller/

Appellee), purchased approximately 150 acres of land in

Plumstead Township, Bucks County, (Township/Appellant). On

the same, day, Miller filed an application with the Township

for a curative amendment to the zoning ordinance. Miller

contended that the ordinance was unconstitutional because it

failed to make provisions for quarrying, bituminous asphalt

plants and ready-mix concrete plants. The Board of Supervisors

of Plumstead Township denied the application and Miller

appealed to the Bucks County Common Pleas Court.

The common pleas court held that the ordinance

unconsiitutionally excluded quarrying in the Township but

denied site-specific, relief. The Commonwealth Court affirmed

that portion of the common pleas court’s order which found

that the ordinance excluded quarrying, but reversed the

determination that Miller was not entitled to site-specific relief.

Appeal of Miller and Son Paving, Inc., 636 A.2d 274 (Pa.

Cmwlth. 1993), alloc. denied, 846 A.2d 1182 (Pa. 1995). The

matter was remanded to the common pleas court to determine

the extent to which Miller was permitted to establish a quarry.

On remand, the common pleas court entered an order approving

the use of the property as a quarry, bituminous asphalt plant

and ready-mix concrete plant. The Commonwealth Court

thereafter reversed, but only as to the common pleas court’s

approval of asphalt and concrete plants.

Appendix A

In the meantime, Miller had filed a petition for the

appointment of a board of viewers to assess damages for the

temporary de facto taking of the property during the period in

which Miller was precluded from quarrying while challenging

the constitutionality of the zoning ordinance. Specifically,

Miller sought damages for the interest paid on its mortgage,

loss of profits due to its inability to quarry and the costs it

incurred in the curative amendment proceedings, The Township

filed preliminary objections to the petition contending that

Miller’s claim of a de facto taking was not ripe because there

was no final determination that the ordinance unconstitutionally

excluded quarrying, and that the complaint failed to state a cause

of fiction for a temporary de facto taking.

The common pleas court dismissed the Township’s

preliminary objections without a hearing. It found that the

zoning ordinance deprived Miller of the use and enjoyment of

its property because the land would have been quarried had it

not been for the unconstitutional provision. The court

concluded, as a matter of law, that Miller established a

compensable temporary de facto taking for the period between

the date the property was purchased and the date the zoning

ordinance was invalidated.

The Commonwealth Court affirmed, finding that the trial

court did not abuse is discretion in dismissing the Township’s

preliminary objections. It relied on the United States Supreme

Court’s decision in First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles, 482 U.S. 304 (1987), for

the proposition that Miller was not precluded from bringing an

action under the Eminent Domain Code for damages it allegedly

suffered during the period of the temporary taking. It rejected

the Township’s claim that other permissive uses of the property

Appendix A

existed. The court held that to establish a de facto taking, the

landowner must only establish that there were “exceptional

circumstances” which substantially deprived the property owner

of the beneficial use and enjoyment of his property. It concluded

that the enforcement of the ordinance later found invalid

constituted such an exceptional circumstance. '

The issue, in its most basic form, is whether an exclusionary

zoning ordinance constitutes a per se taking of the property

affected by the ordinance. The Township contends that delays

attributable to legal challenges to zoning provisions do not

automatically constitute a taking because viable uses of the

property may remain unaffacted by the illegal provision. It

asserts that because Miller was never denied all viable or

economic use of its property and Miller was ultimately granted

the right to quarry, no taking occurred prior to the time when

the ordinance was deemed unconstitutional. It further suggests

that the decision of First English is distinguishable and is

expressly limited to its facts. We agree.

A landowner alleging a de facto taking is under a heavy

burden to establish that such a taking has occurred. Zettlemover

v. Transcontinental Gas Pipeline Corporation, 540 Pa. 337,

657 A.2d 920 (1995). A taking occurs whenever the entity

clothed with the power of eminent domain substantially

deprives an owner of the use and enjoyment of his property.

1. The appellate scope of review in a case where the trial court has

dismissed preliminary objections to a petition for an appointment of

viewers is limited to a determination of whether the trial court abused

its discretion or committed an error of law, Faleski v. Department of

Transportation, 633 A.2d 1308 (Pa. Cmwith. 1093).

Appendix A

Id.* In United Artists’ Theater Circuit Inc. vy. City of

Philadelphia, 535 Pa. 370, 635 A.2d 612 ( 1993), we enumerated

the following three conditions for determining whether a valid

regulatory restriction constitutes a taking requiring just

compensation:

(1) the interest of the general public, rather than a

particular class of persons, must require

governmental action,

(2) the means must be necessary to effectuate that

purpose; and

(3) the means must not be unduly oppressive upon

the property holder, considering the economic

impact of the regulation, and the extent to which

the government physically intrudes upon the

property.

Id. at 381, 635 A.2d at 618.

2. The takings clause in the Pennsylvania Constitution provides:

Nor shall private property be taken or applied to public use,

without authority of law and without just compensation

being made or secured.

Pa. Const. art, 1, § 10.

Similarly, the United States Constitution states:

No person ... shall be ... deprived of life, liberty, or

property, without due process of law; nor shall private

property be taken for public use, without just compensation.

U.S. Const. amend. V.

Appendix A

The Township focuses on the third condition and contends

that the ordinance, though ultimately doomed exclusionary, was

not unduly oppressive. In discussing that factor in United

Artists, we noted that a taking does not result merely because a

regulation may deprive the owner of the most profitable use of

his property. Otherwise, all zoning regulations could be

categorized as “takings” in the sense that the owner is not

completely free to use his property as he chooses. Here, the

property was zoned residential. Although the ordinance

deprived Miller of the use of quarrying, other viable uses clearly

existed.’ Accordingly, we hold that the lower courts erred in

concluding that the invalid zoning ordinance constituted a

taking of Miller’s property.‘

First English does not require a contrary result. There, the

County of Los Angeles adopted an interim ordinance

prohibiting the construction or reconstruction of any building

or structure in a flood protection area. The appellant, a church

that had purchased property in the protected area prior to the

adoption of the ordinance, sought damages for the loss of use

of the property. The United States Supreme Court held that the

Fifth and Fourteenth Amendments to the United States

Constitution require that the landowner be compensated for the

period of time before it was finally determined that the

3. Miller’s 150 acres were zoned R-1 which permitted, inter alia,

single family detached dwellings, farm and accessory buildings, public

buildings, home occupations and accessory offices for a physician,

lawyer, clergymen or other profession.

4. Moreover, we note that a holding to the contrary could have a

chilling effect on land use planning as the adoption of an invalid

ordinance could prove financially devastating to a municipality which

unsuccessfully defends a lengthy constitutional challenge.

= Appendix A

regulation constituted a taking. This decision is distinguishable

from the instant case for several reasons.

First, and most significantly, the Court in First English

accepted as fact for purpose of its analysis that the landowner

was deprived of all beneficial use and enjoyment of the

property.* The Court stated that “ ‘temporary takings which,

at, here, deny a landowner all use of his property, are not

different in kind from permanent takings, for which the

Constitution clearly requires compensation.” Jd. at 318. Unlike

the landowner in First English, however, Miller was not denied

all use of its property, but was rather illegally denied the use of

quarrying.

Second, First English did not involve the invalidation of

an unconstitutional zoning ordinance. The landowners did not

challenge the validity of the ordinance but merely sought

damages pursuant to a takings claim. Thus, First English does

not support the conclusion reached by the Commonwealth Court

that an invalid zoning ordinance effects a per se temporary

taking. The Commonwealth Court erroneously confused the

legal concepts applicable to takings claims and regulation

validity issues.°

5. The Court stated that it “assume[d] that the Los Angeles County

ordinance has denied appellant all use of its property for a considerable

period of years,” and held that invalidation of the ordinance without

payment was a constitutionally insufficient remedy. /d. at 322.

6. A validity inquiry involves the determination of whether a

governmental action is encompassed within its scope of power. In a

takings inquiry, however, the question is whether the govemmental action

effectively deprived the landowner of all beneficial use of his property,

regardless of whether the action in question was a valid exercise of

governmental power.

Appendix A

Finally, the decision in First English was specifically

limited to the facts presented. The Court explained that it “[did]

not deal with the quite different questions that would arise in

the case of normal delays in obtaining building permits, changes

in zoning ordinances, variances, and the like which are not

before us.” Jd. at 321.’

Accordingly, the order of the Commonwealth Court is

reversed and the preliminary objections of the Township are

sustained.

7. We recognize that the law of the Commonwealth prior to the

decision in First English provided that the exclusive remedy for

challenging a zoning regulation on the ground that it was confiscatory

was under the Municipalities Planing Code. Kraiser v. Horsham

Township 455 A.2d 782 (Pa. Cmwith. 1983); Wyoming Borough v. Wyco

Realty Co., 440 A.2d 696 (Pa. Cmwith. 1982); Gaebel v. Thombury

Township, 303 A.2d 57 (Pa. Cmwlth. 1973). In McClimans v. Board of

Supervisors v. Shenango Township, 529 A.2d 562 (Pa. Cmwith. 1987),

however, the Commonwealth Court noted in dicta that, pursuant to First

English, a compensable temporary taking would arise for the period of

time that a zoning ordinance conclusively prevented the removal of coal

from a coal estate. Unlike the instant case, the ordinance in McClimans

precluded the single use the property possessed. The Commonwealth

Court’s reliance on McClimans was therefore erroneous.

APPENDIX B — OPINION AND ORDER OF THE

COMMONWEALTH COURT OF PENNSYLVANIA

FILED JUNE 21, 1996

IN THE COMMONWEALTH COURT

OF PENNSYLVANIA

No. 1341 C.D. 1995

Argued: February 5, 1996

MILLER AND SON PAVING, INC.

PLUMSTEAD TOWNSHIP,

BUCKS COUNTY, PENNSYLVANIA,

Appellant

BEFORE: HONORABLE, JAMES GARDNER COLINS,

President Judge

HONORABLE JIM FLAHERTY, Judge

HONORABLE CHARLES P. MIRARCHL, JR.,

Senior Judge

OPINION BY

SENIOR JUDGE MIRARCHI FILED: June 21, 1996

The Board of Supervisors of Plumstead Township (Board)

appeals from an order of the Court of Common Pleas of Bucks

County (trial court) which overruled the Board’s preliminary

objections to the petition for appointment of a board of viewers

10a

Appendix B

filed by Miller and Son Paving Incorporated (Miller) pursuant

to Section 502(e) of the Eminent Domain Code.'

In June, 1988, Miller acquired a 150-acre tract of land in

Plumstead Township. The property was zoned R-1, Rural

Residential. On the same day Miller acquired the property, it

filed an application for a curative amendment, challenging the

Plumstead Township Zoning Ordinance (Zoning Ordinance) on

the grounds that it failed to make provisions for quarrying,

bituminous asphalt plants and ready-mix concrete plants. The

Board rejected the proposed amendment on the grounds that

quarrying, bituminous asphalt plants and ready-mix concrete

plants were permitted in the Limited Industrial District.

Miller appealed to the trial court which determined that

the Zoning Ordinance excluded quarrying but denied

site-specific relief. Miller then appealed to this Court which

affirmed that part of the trial court’s order which found that

the Zoning Ordinance excluded quarrying but reversed the trial

court’s determination that Miller was not entitled to site-specific

relief.? The Court then remanded the case to the trial court to

determine whether Miller’s use of the property should be

approved as to all elements or as to some elements. On remand,

the trial court entered an order approving the use of the property

as a quarry, bituminous asphalt plant and a ready-mix concrete

plant.

1. Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26

P.S. §1-5S02(e)

2. Appeal of Miller and Son Paving, Inc., 636 A.2d 274 (Pa.

Cmwilth. 1993), petition for allowance of appeal denied, __ Pa. __, 646

A.2d 1182 (1995).

lla

Appendix B

On January 21, 1994, Miller filed a petition for appointment

of a board of viewers alleging that the Zoning Ordinance

unconstitutionally excluded quarrying, which conclusively

prevented Miller from mining stone from its property. Miller

sought as damages reimbursement for the interest paid on its

mortgage, loss of profits due to its inability to quarry on the

property and the costs it incurred in the curative amendment

proceedings. The Township filed preliminary objections to the

petition averring that Miller’s claim of a de facto taking was

not ripe because there was no final determination that the

Zoning Ordinance unconstitutionally excluded quarrying and

that the complaint failed to state a cause of action for a

temporary de facto taking.

The trial court overruled the Township’s preliminary

objections. The trial court found that because Miller was

precluded from using the land as a quarry during the period the

Zoning Ordinance was being challenged, a compensable

temporary de facto taking occurred as a matter of law. The

Township now appeals to this Court.

On appeal, the Township argues (1) Miller has not

established that a taking has occurred as a matter of law and

(2) Miller has not suffered a temporary taking where it was not

deprived of all economically beneficial use of its property

during the pendency of its curative amendment challenge.

The filing of a petition for the appointment of viewers,

when there has been no declaration of taking filed by the

condemnor, is specifically authorized by Section 502(e) of the

Eminent Domain Code. Millcreek Township v. N.E.A. Cross

Co., 620 A.2d 558 (Pa. Cmwlth. 1993), petition for allowance

of appeal denied, 537 Pa. 655, 644 A.2d 739 (1994).

12a

Appendix B

Preliminary objections are the exclusive method under the

Eminent Domain Code of raising, legal and factual objections

to a petition for appointment of viewers which alleges a de

facto taking. Reidel v. County of Allegheny, 633 A.2d 1325

(Pa. Cmwith. 1993).

When preliminary objections are filed in a de facto taking

case, the trial court must determine first whether, as a matter

of law, the averments of the petition for the appointment of

viewers, taken as true, are sufficient to state a cause of action

for a de facto taking. Department of Transportation v. Mano,

613 A.2d 119 (Pa. Cmwith. 1992). If the preliminary objections

raise an issue of fact, the resolution of which is necessary for

determining whether a de facto taking has occurred, the court

must hold an evidentiary hearing. Millcreek Township, supra.

If the preliminary objections do not raise any such issue of

fact, the trial court must simply examine the petition and dismiss

the preliminary objections if the averments of the petition are

sufficient to establish a de facto taking. Jd.

Where the trial court has dismissed preliminary objections

to a petition for appointment of a board of viewers pursuant to

the Code, this Court’s scope of review is limited to a

determination of whether the trial court abused its discretion

or committed an error of law. Faleski v. Department of

Transportation, 633 A.2d 1308 (Pa. Cmwith. 1993).

The Township first argues that a landowner who asserts

the invalidity of a zoning ordinance cannot seek damages under

the Eminent Domain Code, but has, as his exclusive remedy, a

challenge to the substantive validity of the zoning ordinance

under the Pennsylvania Municipalities Planning Code (MIC),

Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 -

11201.

13a

Appendix B

In Gaebel v. Thornbury Township, 303 A.2d 57 (Pa.

Cmwith. 303 A. 1973), the landowners’ property was rezoned

from commercial to flood plain. They sought damages under

the Eminent Domain Code for the effect of a change in zoning

classification upon their property. They contended that the

amended zoning ordinance took their property without just

compensation by severely restricting its use. On appeal, this

Court stated that the landowners’ “exclusive recourse is to

challenge the constitutionality of Thornbury’s zoning ordinance

under the provisions of review established by the MPC, and

they cannot at this time avail themselves of compensation under

the provisions of the Eminent Domain Code.” /d. at 60. Accord,

Kraiser v. Horsham Township, 455 A.2d 782 (Pa. Cmwith.

1983); Wyoming Borough v. Wyco Realty Co., 440 A. _— 696

(Pa. Cmwith. 1982).

In 1987, the United States Supreme Court issued its

decision in First English Evangelical Lutheran Church Of

Glendale v. County of Los Angeles, 482 U.S. 304 (1987). In

that case, the Supreme Court held that the Fifth and Fourteenth

Amendments of the United States Constitution require that “a

landowner who claims that his property has been taken by a

land-use regulation may . . . recover damages for the time before

it is finally determined that the regulation constitutes a ‘taking’

of his property.” Jd. at 306-7.

In McClimans v. Board of Supervisors of Shenango

Township (McClimans I), 529 A.2d 562 (Pa. Cmwlth. 1987),

the landowners argued that the local zoning ordinance prevented

them from accessing their coal estate. On appeal, this Court

stated that if it can be shown that the extraction cf the coal had

been conclusively prevented, then the ordinance would be

rendered invalid as a taking without just compensation. The

l4a

Appendix B

Court went on to add, citing First English, that if a taking had

occurred and the township subsequently amended its ordinance

to allow the strip mining, the township would then be required

to pay just compensation for the “temporary taking.” See a/so

Odhner v. Township of Woodward, 599 A.2d 276, 279 (Pa.

Cmwilth. 1991) (“We recognize that a landowner, subjected to

a temporary taking, can be entitled to compensation for the

deprivation of the use of the property during the time period

which precedes a decision invalidating the regulation.”); Appeal

of Doyle, 598 A.2d 352, 354 (Pa. Cmwlth. 1991) (“appellants

must first exhaust their remedies under the MPC before they

can bring an action for inverse condemnation under the Eminent

Domain Code.”)

We conclude, based on the Supreme Court decision in First

English and this Court’s cases applying that decision, that Miller

is not precluded from bringing an action under the Eminent

Domain Code for damages it allegedly suffered during the

period of the temporary taking.

The Township next argues that Miller did not suffer a

temporary taking of its property during the pendency of its

curative amendment challenge because, under First English, it

was not deprived of all economically beneficial use of its

property. The Township contends that numerous uses were

permitted in the R-1 District at the time Miller filed its curative

amendment.

Courts of this Commonwealth have not required a

landowner to prove that he or she has been deprived of all

beneficial use of the property. To establish a de facto taking,

the landowner must establish that there were exceptional

circumstances which substantially deprived the property owner

15a

Appendix B

of the beneficial use and enjoyment of his or her property.

Appeal of D.R.E. Land Developing, Inc., 613 A.2d 96 (Pa.

Cmwlth. 1992). Whether property owners have been

substantially deprived of the beneficial use and enjoyment of

their property as a consequence of activities by the alleged

condemnor is dependent upon the type of use property owners

have made of their property. Erie Municipal Authority v.

Agostini, 561 A.2d 1281. (Pa. Cmwith. 1989). For purposes of

determining whether there was a de facto taking of property

has occurred, the beneficial use of the property includes not

only its present use, but also all potential uses, including its

highest and best use. Department of Transportation v. Steppler,

542 A.2d 175 (Pa. Cmwlth. 1988.).

In the case before us, the trial court found that the Zoning

Ordinance, subsequently invalidated, comprised an ‘exceptional

circumstance’ that deprived Miller of the use and enjoyment

of the property.” (Trial Court Opinion, p. 5.) The trial court

also found that “[t]he petition submitted by Miller conclusively

established that but for the Township’s unconstitutional

ordinance, the land would have been mined by Miller.” Jd.

The petition for appointment of viewers submitted by

Miller complies with the requirements of Pennsylvania caselaw

for the establishment of a de facto taking. We therefore conclude

that the trial, court did not abuse its discretion or commit an

error of law in dismissing the Township’s preliminary

objections.

The order of the trial court is affirmed.

s/ Charles P. Mirarchi, Jr.

CHARLES P. MIRARCHI, JR., Senior Judge

16a

Appendix B

IN THE COMMONWEALTH COURT

OF PENNSYLVANIA

No. 1341 C.D. 1995

MILLER AND SON PAVING, INC.

PLUMSTEAD TOWNSHIP, BUCKS

COUNTY, PENNSYLVANIA,

Appellant

ORDER

AND NOW, this 21st day of June, 1996, the order of the

Court of Common Pleas of Bucks County in the

above-captioned matter is hereby affirmed.

s/ Charles P. Mirarchi, Jr.

CHARLES P. MIRARCHI, JR., Senior Judge

17a

APPENDIX C — OPINION OF THE COURT OF COMMON

PLEAS OF BUCKS COUNTY, PENNSYLVANIA

DATED AUGUST 20, 1995

IN THE COURT OF COMMON PLEAS OF

BUCKS COUNTY, PENNSYLVANIA

CIVIL ACTION — LAW

No. 94-000389-22-5

MILLER AND SON PAVING, INC.

PLUMSTEAD TOWNSHIP,

BUCKS COUNTY, PENNSYLVANIA

OPINION

FACTS:

Plaintiff, Miller and Son Paving, Inc. (hereinafter “Miller”)

acquired a one hundred and fifty (150) acre tract of land in

Plumstead Township. Bucks County (hereinafter “Township”)

in June, 1988. At the time of the purchase, the Plumstead

Township Zoning Ordinance excluded quarrying and its

accessory uses from the Township. See infra. Miller thereafter

filed a curative amendment application with the Township,

seeking to declare the zoning ordinance unconstitutional

because it excluded quarrying and its accessory uses.

After multiple hearings spanning a period of forty-six (46)

months, the Board of Supervisors of Plumstead Township

18a

Appendix C

denied the curative amendment application, and an appeal was

filed to the Court of Common Pleas of Bucks County. A panel

of three judges concluded that the zoning ordinance totally

excluded quarrying as a permissible use within the township

and therefore was unconstitutional. However, site specific relief

to quarry the property was denied. Miller appealed that decision

to the Commonwealth Court, which affirmed in part, reversed

in part and remanded the case with the following order:'

AND NOW, this 30th day of December, 1993 the

opinion and order of Common Pleas are affirmed in

part and reversed in part. Common Pleas is affirmed

insofar as it ruled that the ordinance excludes

quarrying. It is affirmed insofar as it impliedly ruled

that the ordinance does not exclude bituminous

asphalt plants and ready mix concrete plants. It is

reversed insofar as it ruled that Miller is not entitled

to site specific relief. This matter is remanded to |

Common Pleas for determination, pursuant to

Section 1006-A(c) of the Pennsylvania |

Municipalities Planning Code, 53 P.S. §11006-A(c)

regarding whether Miller’s use of the property as a |

quarry is “approved as to all elements” or “approved |

as to some elements, [requiring] other elements [to |

be referred) to the governing body ... for further

proceedings...”

Jurisdiction is relinquished.

JAMES GARDNER COLINS, J.

1. Township’s Petition for Allowance of Appeal to the

Pennsylvania Supreme Court was denied.

19a

Appendix C

On remand, the lower court entered an order on September

13, 1994, approving the use of the property as a quarry,

bituminous asphalt plant, and a readi-mix concrete plant on

the premises in question. Thereafter, Miller filed a Petition for

Appointment of a Board of Viewers (hereinafter “Petition”) to

assess damages for the temporary, de facto taking of the

property during the period in which Miller was denied use of

the property for quarrying while successfully challenging the

constitutionality of the Zoning Ordinance. Township filed

preliminary objections to the petition. On May 5, 1995, the

undersigned entered an order overruling and denying said

preliminary objections. Subsequently, defendant filed this

timely appeal. This Opinion is written in support of the Court’s

Order.

Pursuant to Pa. R.A. P. § 1925(b) , Township cites six (6)

specific errors as follows:

1. The Petition failed as a matter of law to establish that a

de facto taking occurred;

2. The Petition failed an a matter of law to establish that a

temporary taking occurred;

3. That an evidentiary hearing was required to establish

whether or not a taking had occurred as a matter of fact;

4. The Petition failed to establish that plaintiff has been

deprived of all economically beneficial use of its property;

5. That plaintiff's exclusive remedy is Pennsylvania

Municipalities Planning Code, 53 P.S. § 1001-A; and

20a

Appendix C

6. The Petition failed to establish that application for a

use permit has been made or such application had been denied.

DISCUSSION:

Preliminary objections in the context of eminent domain

actions serve a broad purpose intended to resolve both factual

and legal challenges. N. Penn Water v. A Certain Parcel of

Land Identified By Last Known Owner and Tax Parcel Number

as Michael H. Malin and Doroth Seimel Malin, __ Pa. Commw.

__, 650 A.2d 1197, 1201 (1994). The proper mode of

challenging a petition for appointment of viewers filed by

condemnee is by preliminary objections. Jn re Commendation

by Com., Dept. of Transp., 112 Pa. Commw. 368, 535 A.2d

121.0 (1988), appeal denied, 519 Pa. 655, 546 A.2d 60. An

order dismissing preliminary objections to a petition for

appointment of viewers under the eminent domain code is a

final appealable order that will not be overturned absent abuse

of discretion or error of law by the trial court. Riedel v. County

of Allegheny, 159 Pa. Commw. 583, 633 A.2d 1325 (1993).

The Eminent Domain Code authorizes filing of a petition

for appointment of viewers when there has been no declaration

of taking filed by the condemnor. Millcreek Tp. v. N.E.A. Cross

Co., 152 Pa. Commw. 576, 620 A.2d 558 (1993), appeal denied,

537 Pa. 655, 644 A.2d 739. When a petition for a board of

viewers alleges a de facto taking and preliminary objections

are thereafter filed, an evidentiary hearing is not necessary if

an issue of fact is not raised. Jd. When no disputed factual issue

exists and the issues before the trial court are purely legal,

preliminary objections may be ruled upon without a hearing.

26 P.S. § 1-504; Millcreek Tp., 152 Pa. Commw. 576, 620

A.2d at 588.; Miller v. Com. Dept. of Transp., 91 Pa. Commw.

622, 498 A.2d 1370 (1985).

2la

Appendix C

This Court, upon review of Miller’s petition, determined

that a cause of action for compensable injury by reason of a

temporary de facto taking existed and that only legal issues

remained to be resolved. Miller appropriately submitted the

petition under the Eminent Domain Code, upon completing a

successful challenge of the ordinance under the Municipalities

Planning Code. See First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles, 482 U.S. 304, 107 S.Ct.

2378, 96 L.Ed.2d 250 (1987); Appeal of Doyle, 142 Pa. Commw.

672, 598 A.2d 352 (1991). The petition set forth facts

sufficiently demonstrating that due to Township’s ordinance,

declared unconstitutional by the Court of Common Pleas and

affirmed by the Commonwealth Court, Jn re Miller and Son

Paving, Inc., 161 Pa. Commw. 138, 636 A.2d 272 (1993),

allocatur denied, 538 Pa. 629, 646 A.2d 1182, Miller was

substantially precluded from utilizing its land during the period

that the constitutionality of the ordinance was being challenged.

A taking occurs when an entity clothed with the power of

eminent domain substantially deprives an owner of the use and

enjoyment of his property. Petition of Cornell Industrial Elec.,

Inc., 19 Pa. Commw. 599, 338 A.2d 752 (1975); see also Moore

v. Commonwealth of Pennsylvania, Department of

Environmental, Resources, _ Pa. Commw. __, 660 A.2d 677

(1995). “In order to establish a de facto taking the property

owner must show that there are exceptional circumstances

which have substantially deprived him of the beneficial use

and enjoyment of his property.” Reidel v. County of Allegheny,

159 Pa. Commw. 583, 633 A.2d 1325, 1328 (1993). (citations

omitted). The Township ordinance, subsequently invalidated,

comprised an “exceptional circumstance” that deprived Miller

of the use and enjoyment of the property, with Miller incurring

costs of carrying the property and the curative amendment

challenge.

22a

Appendix C

The petition submitted by Miller conclusively established

that but for Township’s unconstitutional ordinance, the land

would have been mined by Miller. As Miller was precluded

from using the land as a quarry during the period the ordinance

was being challenged, a compensable temporary de facto taking

occurred as a matter of law. In McClimans v. Board of

Supervisors of Shenango Township, 107 Pa. Commw. 542, 529

A.2d 562, 570 (1987) (McClimans I), the Commonwealth Court

remanded to Common Pleas so that evidence could be taken to

determine whether or not an ordinance in question was

unconstitutional, thereby causing an invalid taking. In so doing,

the Commonwealth Court stated:

“{I]f it can be shown that the extraction of the

coal has been conclusively prevented, then the

ordinance will be rendered invalid as a taking

without just compensation .. . If there is a ‘taking

and the Township subsequently amends the

ordinance to allow the strip mining, the Township

would then be required to pay just compensation

for the harm caused to the appellants by the

‘temporary taking.’ ”

Id. at 570 (citing First Evangelical Lutheran Church of

Glendale, 482 U.S. at 304, 107 S.Ct. at 2378, 96 L.Ed.2d. at

250.).

As no issue of fact was raised by Township, this Court

addressed the legal issue of whether or not a temporary and/or

de facto taking occurred. Such legal findings were based upon

the record in the instant case, as well as the record, Orders and

Opinions in the companion case, Miller and Son Paving Inc.

vs. Plumstead Township, 65 Bucks Co. L. Rep., pp. 207-217

23a

Appendix C

(Dec. 22, 1994); and Jn re Miller and Son Paving, Inc., 161 Pa.

Commw. 138, 636 A.2d 272 (1993), allocatur denied, 538 Pa.

629, 646 A.2d 1182. This Court determined that Miller was

substantially deprived of the beneficial use and enjoyment of

its property because of the exceptional circumstance of

Township’s unconstitutional ordinance. Therefore, as a matter

of law, the petition established that a temporary de facto taking

had occurred during the period in which Miller commenced

ownership of the property until such date that the ordinance

was stricken.

Finally, this Court determined that the Petition for

Appointment of a Board of Viewers should be granted to assess

any compensation forthcoming to Miller, as the Township’s

ordinance was successfully challenged under M.P.C. 53 PS.

§ 1001-A and the appropriate uses were approved.’ Miller

reasonably believes that applying for the appropriate permits

would have been fruitless, as the Township would not issue

such permits. This Court agrees with Miller that such

application would be futile. It is noted that in Lucas v. South

Carolina Coastal Council, 505U.S.__,__,n.3, 112 S.Ct. 2886,

2891-92, n.3, 120 L.Ed.2d 798, 810-11 n.3, Scalia wrote:

“[S]Juch a submission [of a plan to the state authorities] would

2. Bucks County Court of Common Pleas Order of September 13,

1994, reads in pertinent part “AND NOW, this 13th day of September 3,

1994, pursuant to the order of the Commonwealth Court in the within

matter and pursuant to Section 100GA(c) of the Municipalities Planning

Code, 53 P.S. 110615-A(c), appellant’s use of the property as a quarry,

a bituminous asphalt plant, and a readi-mix concrete plant must be and

thereby is APPROVED on the premises in question . . .” Township has

again appealed that order to the Commonwealth Court, Miller Paving

Inc., v. Plumstead Township, No. 2610 Civ. (1994). Said appeal is

pending.

24a

Appendix C

have been pointless, as the Council stipulated no building permit

would have been issued ... Lucas properly alleged

injury-in-fact in his complaint... No more can reasonably be

demanded.” Jd.

For the foregoing reasons, Township’s preliminary

objections were denied, dismissed and overruled.

BY THE COURT:

s/ Cynthia M. Weaver

CYNTHIA M. WEAVER, J.

DATED: August 20, 1995

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