Opposition Brief — Miller & Son Paving, Inc. v. Plumstead Township

Supreme Court, U.S Be

Eas ie Se

|

DEC 21 1998

No. 98-832

IN THE

Supreme Court of the United States

OcTOBER TERM, 1998

PRIMI te «SEAS aR J

MILLER AND SON PAV,iNG, INC.,

Petitioner,

VS.

PLUMSTEAD TOWNSHIP,

BUCKS COUNTY, PENNSYLVANIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

PTO THE SUPREME COURT OF PENNSYLVANIA,

EASTERN DISTRICT

RESPONDENT?’S BRIEF IN OPPOSITION

CATHERINE M. HARPER

Counsel of Record

TIMONEY, KNOX, HASSON

& WEAND, L.L.P.

Attorneys for Respondent

400 Maryland Drive

P.O. Box 7544

Fort Washington, PA 19034-7544

(215) 646-6000

150336 @©J Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 « (800) 359-6859

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COUNTERSTATEMENT OF

QUESTION PRESENTED

Did the Pennsylvania Supreme Court interpret federal

constitutional law correctly in determining that a zoning

ordinance ruled “exclusionary” because of its failure to zone

for quarries did not automatically effect a de facto “temporary

taking” under the Fifth Amendment to the United States

Constitution for the period of time during which the property

owner challenged the Zoning Ordinance in order to use his

residentially-zoned property as he wished, when the regulation

in question never deprived the property owner of all

economically beneficial uses of the land?

il

TABLE OF CONTENTS

Counterstatement of Questions Presented ...........

Table of Contents ois cc Zea cece anaes ees

Table of Cited Authoriee obras ca va eee es

Counterstatement of the Cas@ 6.06. cc ccswaccteass

Reasons for Denying the Writ ....................

I. The Pennsylvania Supreme Court Rendered A

Decision Consistent With This Court’s Decisions

Regarding “Takings” And “Temporary Takings”

In Determining That A Property Owner Who Was

Never Deprived Of All Beneficial Economic Use

Of His Property During The Time Spent

Challenging A Municipal Zoning Ordinance, Did

Not Suffer A Temporary Taking. ...........

Conclusion... «65s views fe eee ee ee

TABLE OF CITED AUTHORITIES

Page

Cases:

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

Sg EES NOTES ata Olan ee ate eee 15

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

(Pa. Cmwlth. Ct. | BARE EEE Ee hues 9

Berman v. Parker, 348 U.S. 26, 99 L. Ed. 27, 75S. Ct.

Re rege Telia gy tse poe ee ea 13

Board of Supervisors of Plumstead T, ownship.v. Miller

and Son Paving, Inc., 646 A.2d 1182, 58 Pa. 629 (1995)

EM SEGRE T ASRS Ee OS CaS Tle ok oe ee 8

Casey v. Zoning Hearing Board of Warwick T, ownship,

459 Pa. 219, 328 A.2d 464 Pee bat l

Euclid v. Ambler Realty Co., 272 U.S. 365, 71 L. Ed.

303, 47S. Ct. 114, 54 ALR BOIG (1926) ..:.5 5... 13

Exton Quarries, inc. y. Zoning Board of Adjustment, 425

Pua, eee Me 00001967) l

Fernley v. Board of Supervisors of Schuytkill Township,

509 Pa. 413, 502 A.2d 585 RRR re ty piesa ak 6

First English Evangelical Lutheran Church of Glendale

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

ow OS Sere ye om abet eae! 9, 10, 11, 12, 13, 16, 18, 20, 21

iv

Cited Authorities

Page

H & R Builders Inc. v. Borough Council of the Borough

of Norwood, 124 Pa. Cmwlth. 88, 555 A.2d 948 (1989)

5 ae ea EAS ee es Oe ee 1,19

Keystone Coal Association v. DeBenedictis, 480 U.S. 470,

94 L. Ed. 2d 472, 107 S. Ct. 1232 (1987) ......... 20

Lucas v. South Carolina Coastal Counsel, 505 U.S. 1003,

120 L. Ed. 2d 798, 112 S. Ct. 2886 (1992) ........ 16

MacDonald, Somer and Frates v. County of Yolo, 477

U.S. 340, 91 L. Ed. 2d 285, 106 S. Ct. 2561 (1986)

5 ak EWES CE CA EPONA S UREA ET eR ee 16

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

U.S. 104, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978)

Pe Ee FE Ee NE re Pe Fe BEE 15, 20

Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922) ... 18

Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725,

137 L. Ed. 2d 980, 117 S. Ct. 1659 (1997) ........ 16, 18

Surrick v. Zoning Hearing Board of Upper Providence

Township, 476 Pa. 182, 382 A.2d 105 (1997) ..... 2

Upper Salford Township and Upper Salford Township

Citizens for Open Space v. Patrick T. Collins Jr., 162

Pa. Cmwlth. 403, 639 A.2d 861 (1994), reversed at

DAL FR. ONG, OOF A.26 Sao CEFF) iss oi whee 19

en ne BT Te ee Ten One ee

Vv

Cited Authorities

Page

Village of Belle Terre v. Boraas, 416 U.S. 1,39 L. Ed.

oa 191, 948,00 HMO 13

Statutes: |

we TS. O:1r30T OMB. 5 ec See 2

1D Bie ROLOE ST BOE ra ce a l

oF 80. § ICG) i Se ee ee 6

BaP § OUTS oe ie ieee eee 14

MEE GOED es cere ee ee 2

Pee 8906 ee ree I

ui i fed 1k | Ee eee eipeee in eT ce habia eas l

PGP. S SICIENG) oo i es ee l

Na GRU ig i ei ok eee |

Mart. § TOGA) a Se ee eee 1, 6

United States Constitution:

PASeh PANE on Cr ea

vl

Cited Authorities

Page

Other Authorities:

ALR Annotation “Exclusion from Municipality of

Industrial Activities Inconsistent with Residential

Character, 9 AL £6 Ges Che OO) 6 o:k vc wh ween ees 2

Report of the Pennsylvania 21st Century Environment

Comasission (GGG. 1996) 66 oii seks eerie 3

Taking on a new direction: the Rehnquist/Scalia approach

to regulatory takings, Temple Law Review, Volume

66, 0. 197, ZED (ESSERE vow cdcere nated aeons 17

|

COUNTERSTATEMENT OF THE CASE

Miller and Son Paving, Inc., (“Miller”) purchased a 150

acre farm in a residential zone in rural Plumstead Township,

Bucks County, Pennsylvania, knowing that the zoning ordinance

did not permit quarrying on the land, and filed a curative

amendment the same day under the Pennsylvania Municipalities

Planning Code seeking a quarry and other industrial uses.'

1. Planning and zoning in Pennsylvania are handled by the

Commonwealth's 2500 municipalities under the Pennsylvania

Municipalities Planning Code, (“MPC”) Act of 1968, P.L. 805, No. 247,

as reenacted and amended from time to time, 53 P.S. § 10101 et seg A

“curative amendment” pursuaut to Section 916.1 of the MPC [previously

53 Purdon’s Statutes | 1004] is directed either to the zoning hearing board

or to the governing body as a challenge to the validity of a township's

zoning ordinance or zoning map and the landowner submits the proposed

“curative” zoning amendment to address the perceived deficiency. An

applicant who successfully challenges a zoning ordinance as

“unconstitutionally” exclusionary is entitled to site specific relief, or, in

other words, approval of the application. See H & R Builders Inc. y.

Borough Council of the Borough of Norwood, 124 Pa. Cmwith. 88, 555

A.2d 948 (1989), holding that exclusion of junkyards from all zones

within a municipality excludes a “legitimate business” which renders

the zoning ordinance invalid and entitles the successful challenger to

site-specific relief in accordance with Casey v. Zoning Hearing Board

of Warwick Township, 459 Pa. 219, 328 A.2d 464 (1974). See also MPC

§ 1006A(c) and § 916.1(g). As to invalidity of zoning ordinances which

impose a municipality-wide exclusion of a “legitimate business use” (or

simply fail to provide a zone for such a use), see Exton Quarries, Inc. v.

Zoning Board of Adjustment, 425 Pa. 43. 228 A.2d 169 (1967), and its

progeny.

The MPC also contains a number of procedural safeguards requiring

hearings on the curative amendment to commence within sixty days after

the request is filed (Section 916.1(d)), and also requiring that a decision

be rendered within 45 days after the conclusion of the last hearing

(Section 916(c)(6)).

Nw

After hearings at the township level, and a series of appeals,

seven years later, the Pennsylvania Commonwealth Court (an

intermediate appellate court) ruled that Miller was entitled to

the use of its property as a quarry, but was not entitled to the

bituminous asphalt plant or ready-mix concrete plant that it

also sought on the same site because the Court found that the

ordinance excluded quarries but not bituminous asphalt plants

or ready-mix concrete plants. /n re Miller and Son Paving, Inc.,

161 Pa. Cmwith. 138, 636 A.2d 274 (1993), allocatur denied,

538 Pa. 629, 646 A.2d 1182 (1994). In December 1994, while

the Township sought allocatur review of the Commonwealth

Court decision, Miller filed a petition under the Pennsylvania

Eminent Domain Code, 26 P.S. § 1-101 ef seq., alleging a

temporary de facto taking as a result of the Commonwealth

Court ruling that the Plumstead Township Zoning Ordinance

unconstitutionally excluded quarrying.’ /n Re Appeal of Miller

2. Pennsylvania law has long required that zoning ordinances

include a vanety of dwelling types and a “fair share” of these dwelling

types. Surrick v. Zoning Hearing Board of Upper Providence Township,

476 Pa. 182, 382 A.2d 105 (1997); see also 1988 Amendments to the

Municipalities Planning Code, sec. 604(4). In addition, a number of cases

have held that a zoning ordinance which effectively excludes from the

municipality a legitimate business or commercial land use is

unconstitutional and “exclusionary” for a failure to provide a place for

that land use (see Footnote |). The Commonwealth Court decision

essentially found that the Plumstead Township Zoning Ordinance was

unconstitutionally exclusionary in that it failed to provide a “quarry zone”

although it did permit bituminous asphait plants and ready-mix concrete

plants in its Limited Industrial zone. A quarry 1s In operation on the site

today. In apparently requiring every municipality to make provision for

every commercial and industrial use, in addition to its “fair share” of

housing, Pennsylvania may be unusual. See, for example, ALR

Annotation “Exclusion from Municipality of Industrial Activities

Inconsistent with Residential Character,” 9 ALR 2d 683 (1950), and

Pennsylvania cases cited in the 1997 Later Case Service for the same

(Cont'd)

3

and Son Paving, Inc., 161 Pa. Cmwlth. 138, 636 A.2d 274

(1993).

The township filed preliminary objections alleging that no

temporary taking had occurred and seeking an evidentiary

hearing, and those preliminary objections were eventually

dismissed. The dismissal was affirmed by the Commonwealth

Court, and the township filed a petition seeking allowance of

appeal to the Pennsylvania Supreme Court, which was

ultimately granted. The Court granted allocatur on the question

of whether invalidating a zoning ordinance automatically results

in a temporary de facto taking during the time between the filing

of the curative amendment challenge and the order granting

site specific relief. Miller and Son v. Plumstead, 547 Pa. 383.

690 A.2d 711 (1997).

After argument, the Pennsylvania Supreme Court reversed

the lower courts and ruled that it did not. Miller and Son Paving,

(Cont'd)

article. This may also be changing. See, for example, Report of the

Pennsylvania 21st Century Environment Commission (Sept. 1998), which

concludes that “the challenge of promoting responsible land use” is the

top priority for Pennsylvania’s 21st century. The report specifically notes:

Current development patterns combined with

Pennsylvania’s land use laws, the number (2,571) of

municipalities with land use authority and insufficient

intermunicipal coordination on land use issues work to

foster [suburban] sprawl, not deter it. Court-made rules.

reacting to this fragmentation, exacerbate the situation by

requiring that every municipality that chooses to plan and

zone must provide for every use — all kinds of housing,

commercial and industrial uses.

Report of the Pennsylvania 21st Century Environment Commission (Sept

1998), p. 17. (Also available at http://www.21 stcentury.state.pa.us.)

4

Inc. v. Plumstead Township, Pa. Supreme Court Docket 19 E.D.

Appeal Docket 1997, 717 A.2d 483, 1998 WL 567955 (August

19, 1998). Since the petition for Board of Viewers under the

Eminent Domain Code seeks damages for the time between

the filing of the curative amendment and the final order of the

Commonwealth Court which permitted the quarry to operate, a

more detailed history of the case is warranted to understand

the issues involved.

On June 17, 1988, when Miller and Son Paving, Inc.

purchased 150 acres of residentially-zoned land in Plumstead,

the property was zoned “R-1” which permitted:

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(h)

single family detached dwellings on lots of

60,000 square feet or, as a cluster development,

on lots of 12,500 square feet at a density of

one unit per acre;

farm and accessory buildings;

farm stands;

public buildings, parks and recreation areas;

accessory uSes,

home occupations;

accessory offices for a physician, lawyer,

clergyman, teacher or other profession;

telephone or utility substation.

2

And by special exception, on lots not less than five acres:

(a) private educational, religious or philanthropic

uses;

(b) public, private or parochial schools;

(c) church or other place of worship (and/or)

(d) fire station.

Before Miller’s successful challenge to the Plumstead

Zoning Ordinance, its land was a farm and was used

agriculturally in accordance with the zoning.

The Plumstead Township Board of Supervisors (the elected

governing body of the municipality) held hearings and rejected

the curative amendment, finding, instead, that quarries,

bituminous asphalt plants and concrete mixing plants were all

permitted in the LI — Limited Industrial District, governed by

Article X of the Plumstead Township Zoning Ordinance which

permitted, inter alia, “any industrial use of the same general

character as any of the above permitted uses when authorized

by the Zoning Hearing Board as a special exception.” Miller

appealed to the Bucks County Court ot Common Pleas and, on

March 30, 1993, the Order of the Board of Supervisors of

Plumstead Township denying the curative amendment was

affirmed. The Bucks County Court of Common Pleas

determined that the ordinance excluded quarrying, but

confirmed the Supervisors’ denial of the curative amendment

application because the Court concluded that Miller’s property

was not suitable for quarrying. Miller appealed the decision of

the Court of Common Pleas to the Commonwealth Court, and

on December 30, 1993 the Commonwealth Court issued an

opinion and order finding that:

6

Common Pleas is affirmed insofar as it ruled that

the ordinance excludes quarrying. It is affirmed

insofar as it impliedly rules 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.

The case was thereafter remanded to the Bucks County Court

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

Pennsylvania Municipalities Planning Code, 53 P.S. § 11006-

a(c) to determine

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. ...

(Commonwealth Court Opinion), /n Re Appeal of Miller, 636

A.2d 274, 161 Pa. Cmwith. 138 (1993) (Miller I).

On remand to the Court of Common Pleas of Bucks County,

President Judge Kenneth Biehn ruled that Miller was entitled

to operate a quarry, a bituminous asphalt plant and a ready-

mix concrete plant on the site, believing the Court of Common

Pleas was required to grant the challenging landowner

permission to develop the land as proposed in the curative

amendment once an ordinance was found to be

unconstitutionally exclusionary under Fernley v. Board of

Supervisors of Schuylkill Township, 509 Pa. 413, 502 A.2d 585

(1985). The Township appealed that order to the Pennsylvania

Commonwealth Court, and the Commonwealth Court once

again reviewed the case, this time ruling that the Court of

Common Pleas order dated June 5, 1995 was to be reversed

(again).

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7

In a memorandum opinion by Senior Judge Emil Narick in

Support of the Commonwealth Court’s order, the

Commonwealth Court held that the Bucks County Court of

Common Pleas had abused its discretion in approving Miller’s

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

ready-mix concrete plant” based on the following rationale:

Having found that the zoning ordinance did not

exclude asphalt and concrete plants, Miller /

remanded to the trial court for one purpose, to

determine the extent to which Miller may establish

a quarry on its property. However, the trial court

approved not only the quarry, but also the asphalt

and concrete plants. This was directly contrary to

the findings in Miller J where we expressly stated

that: “Our review of this record reveals that the

Board concluded that the ordinance permits

bituminous asphalt plants and ready-mix concrete

plants by special exception in the limited industrial

district and we agree. . . Consequently we affirmed

the Board’s decision that the ordinance does not

exclude bituminous asphalt plants or ready-mix

concrete plants.” /d. at 146, 636 A.2d at 277-278

The Common Pleas elected to ignore this Court's |

order as well as the reasoning upon which it was

based and instead concluded: “Consequently the

Commonwealth Court’s order in the instant case

ruling that bituminous asphalt plant and ready-mix

concrete plants are not excluded by the Plumstead

Township Zoning Ordinance has no bearing on the

relief to which Miller is entitled, and that is the

adoption of its development plan filed with its

curative amendment.” (Trial Court Opinion at

5)... . However the only use which was unlawfully

omitted from the ordinance was the quarry, and not

8

the asphalt and concrete plants. .. . Neither Fernley

v. Board of Supervisors of Schuylkill Township, 509

Pa. 413, 502 A.2d 585 (1985), nor Ellick v. Board

of Supervisors, 17 Pa. Cmwlth. Ct. 404, 333 A.2d

239 (1975), cited by the Trial Court, authorized the

Court to approve plans submitted by a landowner

which include uses an appellate court has found not

to be excluded in the zoning ordinance.

Opinion of Emil E. Narick, Senior Judge, in Miller

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

County, No. 2610 Commonwealth Court Docket

1994) (unreported) (Miller II).

Having pursued its necessary permits during the pendency

of the zoning litigation, Miller established its quarry on the

site shortly after the Pennsylvania Supreme Court declined to

hear the Township’s appeal. Board of Supervisors of Plumstead

Township v. Miller and Son Paving, Inc., 646 A.2d 1182, 58

Pa. 629 (1995).

Ironically, Miller’s petition for appointment of viewers

under the Eminent Domain Code was already a year old at this

point, having been filed on June 21, 1994 after Miller J, the

first Commonwealth Court opinion, that determined that the

Plumstead Township Zoning Ordinance unconstitutionally

excluded quarrying. Miller’s petition under the Eminent

Domain Code sought a determination that there had been a de

facto temporary taking of its property during the period of time

that it was challenging the constitutionality of the Plumstead

Township Zoning Ordinance. On January 24, 1995, President

Judge Kenneth G. Biehn of the Bucks County Court of Common

Pleas granted Miller’s Petition and appointed a Board of

Viewers to assess the damages. The Township filed preliminary

objections alleging, inter alia, that no de facto taking of the

i delat ae Niinc

9

property had occurred merely upon the finding that the

Plumstead Zoning Ordinance unconstitutionally excluded

quarrying; that the “takings” claim was not yet “ripe,” and

arguing that even if the Zoning Ordinance did unlawfully

exclude quarrying, Miller had never been denied all use of its

property and was therefore not entitled to compensation.

Without a hearing, the Bucks County Court of Common

Pleas dismissed the preliminary objections, holding, as a matter

of law,

the Township ordinance, subsequently invalidated,

comprised an “exceptional circumstance” that

deprived Miller of the use and enjoyment of the

property, with Miller incurring the cost of carrying

the property in a curative amendment challenge

(Opinion of Judge Cynthia Weaver appended to petitioner’s

petition).

Judge Weaver’s decision was affirmed by the

Commonwealth Court in an opinion filed June 21, 1996 in which

the Court, in citing United States Supreme Court Opnion in

First English Evangelical Lutheran Church of Glendale vy.

County of Los Angeles, 482 U.S. § 304 (1987), opined

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 deprive the property owner of the

beneficial use and enjoyment of his or her property

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

(Pa. Cmwlth. Ct. 1992) (see Appendix B to petitioner’s petition,

10

Commonwealth Court Opinion). Miller and Son Paving, Inc.

v. Plumstead Township, Bucks County, 680 A.2d 5 (1996).

The Pennsylvania Supreme Court granted allocatur on the

question stated as follows: “The petition for allowance of appeal

is granted limited to whether invalidating a zoning ordinance

constitutes an automatic de facto taking.” 690 A.2d 711, 547

Pa. 383 (1997).

After briefing and oral argument, the Pennsylvania

Supreme Court reversed the Commonwealth’s determination

that an automatic temporary de facto taking occurred during

the period between when Miller Quarry filed its curative

amendment and when it was finally granted site-specific relief.

The Pennsylvania Supreme Court cited both the

Pennsylvania Constitution (“Nor shall private property be taken

or applied to public use, without authority of law and without

just compensation being made or secured”) and the Fifth

Amendment to the United States Constitution (“No person .. .

shali be... deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for public

use, without just compensation”) in making its decision (see

Appendix A to petitioner’s petition).

The Pennsylvania Supreme Court concluded that Firs

English Evangelical Lutheran Church of Glendale v. County

of Los Angeles, 482 U.S. 304 (1987), did not support the

Commonwealth Court’s conclusion that invalidating a zoning

ordinance automatically effects a per se temporary taking.

Instead, the Supreme Court noted: “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.”

The Court also noted that the First English decision was

specifically limited to the facts presented in that case and cited

this Court’s statement that First English

1]

[did] not deal with the quite different questions that

would arise in the case of normal delays in obtaining

building permits, chang?s in zoning ordinances,

variances, and the like which are not before us.

Id. at 321 (cited in the Supreme Court Opinion attached to

petitioner’s petition as Appendix A).

Miller seeks this Court’s writ of certiorari on this issue.

The Township contends the Pennsylvania Supreme Court

correctly applied this Honorable Court’s decision in First

English to determine that no “temporary taking” occurred

during the time the landowner challenged the zoning ordinance.

REASONS FOR DENYING THE WRIT

I.

THE PENNSYLVANIA SUPREME COURT RENDERED

A DECISION CONSISTENT WITH THIS COURT’S

DECISIONS REGARDING “TAKINGS” AND

“TEMPORARY TAKINGS” IN DETERMINING THAT A

PROPERTY OWNER WHO WAS NEVER DEPRIVED OF

ALL BENEFICIAL ECONOMIC USE OF HIS

PROPERTY DURING THE TIME _ SPENT

CHALLENGING A MUNICIPAL ZONING ORDINANCE,

DID NOT SUFFER A TEMPORARY TAKING.

Prior to this Honorable Court’s decision in First English

Evangelical Lutheran Church of Glendale v. County of Los

Angeles, 482 U.S. 304 (1987), Pennsylvania regarded a

landowner’s sole remedy for challenging a zoning regulation

as the site-specific relief available under the Pennsylvania

Municipalities Planning Code (see Pennsylvania Supreme Court

Decision, Appendix 8A, fn. 7, and cases cited therein). In its

12

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

however, the Pennsylvania Supreme Court recognizes that a

landowner can now get “temporary takings” damages when the

landowner is deprived of all beneficial use and enjoyment of

his property (as was the assumption in the First English case).

However, the Pennsylvania Supreme Court distinguishes that

case on a number of grounds:

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. [Footnote listing all other

permissible uses in the district omitted].

Accordingly, we hold that the lower courts erred in

concluding that the invalid zoning ordinance ~

constituted a taking of Miller’s property (6a)... .

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. . . . 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

13

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 (7a). . . .

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 ordinance, variances and the like

which are not before us” citing First English, id at

321 (8a).

The decision of the Pennsylvania Supreme Court is entirely

consistent with First English and its predecessors and its

progeny.

The United States Supreme Court has long recognized the

validity of zoning ordinances generally. Euclid v. Ambler Realty

Co., 272 U.S. 365, 71 L. Ed. 303, 47 S. Ct. 114, 54 ALR 1016

(1926).

As Mr. Justice Douglas eloquently stated in Village of Belle

Terre v. Boraas, 416 U.S. 1, 39 L. Ed. 2d 797, 94 S. Ct. 1536

(1974),

A quiet place where yards are wide, people few, and

motor vehicles restricted are legitimate guidelines

in a land use project addressed to family needs. This

goal is a permissible one within Berman v. Parker,

[348 U.S. 25, 99 L. Ed. 27, 75 S. Ct. 98], the police

power is not confined to elimination of filth, stench

and unhealthy places. It is ample to lay out zones

———

14

where family values, youth values, and the blessings

of quiet seclusion and clean air make the area a

sanctuary for people.

The Pennsylvania Municipalities Planning Code provides that

municipalities who choose to zone in Pennsylvania may enact

ordinances that shall be designed (in part):

to promote, protect and facilitate any or all of the

following: the public health, safety, morals, and

general welfare; coordinated and practical

community development and proper density of

population; emergency management preparedness |

and operations, airports, and national defense

facilities, the provisions of adequate light and air,

access to incident solar energy, police protection,

vehicle parking and loading space, transportation,

water, sewerage, schools, recreational facilities,

public grounds, the provision of a safe, reliable and

adequate water supply for domestic, commercial,

agriculture or industrial use, and other public

requirements; as well as preservation of the natural,

scenic and historic values in the environment and

preservation of forest, wetlands, aquifers and

floodplains.

Pennsylvania Municipalities Planning Code, Section 604(1).

The petitioner did not challenge the entire Plumstead

Township Zoning Ordinance on the grounds that it exceeded

its police powers. On the contrary, the applicant’s challenge

was limited to a complaint that the zoning ordinance made a de

facto exclusion of an otherwise lawful and legitimate use

(quarrying) by failing to provide for a zone or area where

quarrying could legally take place in Plumstead Township.

eS eee

15

Under Pennsylvania Zoning Law, that rendered the Plumstead

Township Zoning Ordinance unconstitutionally infirm, and

permitted the challenger the remedy of site specific relief

(operation of a quarry in a residential zone). The challenge took

approximately seven years to be heard by the highest court in

the land (actually allocatur was denied, thus rendering the

Commonwealth Court’s decision final). Approximately half of

this time was spent in hearings at the Township level on

evidentiary matters relating to the unconstitutionality of the

zoning ordinance and the suitability of the site for site specific

relief. The other half of the time was spent in the courts (see

the Counterstatement of the Case for the tortured procedural

history of this matter). The time period for the alleged

“temporary taking” was consumed entirely by the process of

challenging a zoning ordinance enacted some years before the

challenge was brought.

This Honorable Court has never held that mere diminution

in value (without physical occupation by a government

possessed with the power of eminent domain) is a compensable

taking. Penn Central Transportation Company v. City of New

York, 438 U.S. 104 (1978).

Moreover, zoning ordinances, in general, have long been

recognized as legitimate exercises of the police power. As in

Agins v. City of Tiburon, 447 U.S. 255, 65 L. Ed. 2d 106 (1980), |

the case at bar presents the question, “whether the mere

enactment of the zoning ordinance constitutes a taking.” Jd. at

2141, at 261. Where zoning laws bear a substantial relationship

to the public welfare, this Court has recognized that they are

appropriate under the police powers of government, and only

effect a taking where the property owner is deprived of all

economically viable use of his land. Agins v. City of Tiburon,

id., at 2142.

The purposes behind the enactment of Plumstead’s

comprehensive zoning scheme, designed as they are to meet

16

the requirements of the Pennsylvania Municipalities Planning

Code, are legitimate to police power purposes. It is recognized,

of course, that legitimate police power regulations can “go too

far” and thereby effect a taking, but the cases in which this

Court has found a compensable “taking,” the property

owner has been deprived of all economically beneficial use

of his land. First English Evangelical Lutheran Church vy.

County of Los Angeles, id., see also MacDonald, Somer and

Frates v. County of Yolo, 477 U.S. 340, 91 L. Ed. 2d 285, 106

S. Ct. 2561 (1986), rehearing denied, 478 U.S. 1035, 92 L. Ed.

2d 773, 107 S. Ct. 22 (1986), and Suitum v. Tahoe Regional

Planning Agency, 520 U.S. 725, 137 L. Ed. 2d 980, 117 S. Ct.

1659 (1997); Lucas v. South Carolina Coastal Counsel, 505

U.S. 1003, 120 L. Ed. 2d 798, 112 S. Ct. 2886 (1992). This

Court has carefully distinguished between cases in which the

property owner suffered a mere diminution in value and those

involving total regulatory takings. Lucas v. South Carolina

Coastal Counsel, id., at 1026.°

3. Interesting in the context of the present case is the discussion in

Lucas v. South Carolina Coastal Counsel, id., of the notion that this

Honorable Court’s opinions “have suggested that ‘harmful or noxious

uses’ of property may be proscribed by government regulations without

requirement of compensation.” This is sometimes referred to as the

“nuisance exception.” The case at bar, of course, involves the petitioner's

attempt to establish a quarry (and bituminous asphalt plant and concrete

mixing plant) in a residential zone. This result was permitted under

Pennsylvania land use law as the site-specific relief to which a successful

challenger is entitled when the landowner proves that the zoning

ordinance excludes a iegitimate land use. At least one commentator on

the Lucas case, however, discussing the nuisance exception, made the

following point:

Historically, the nuisance exception allowed government

to prevent harm by regulating conduct akin to a public

nuisance. For example, operation of a cement plant in a

(Cont'd)

17

Your petitioner asserts that it “must be conceded by all”

that a zoning ordinance that

(Cont'd)

residential area would constitute a nuisance and, thus, could

be regulated without the need for compensation because

such regulations did not effect a taking ... the Court

previously used prevention of harm as justification for

uncompensated regulations under the “nuisance

exception”doctrine; while the current court employs the

public benefit rationale to justify uncompensated

regulations under the “legitimate state interest” doctrine.

[Justice] Scalia understands the nuisance exception simply

to be an early analytical justification for uncompensated

regulations. As such, the exception is consistent with [later

cases]. Thus, even if government maintains its regulation

is enacted to combat a nuisance, the regulation requires

compensation if it completely destroys property value .. .

therefore, if a regulation entirely destroys property’s value,

the regulation cannot claim to be abating a nuisance because

the regulation has destroyed legitimate sources of value as

well.

Taning on a new direction: the Rehnquist/Scalia approach to regulatory

takings, Temple Law Review, Volume 66, p. 197, 215 (1993). One could

argue, therefore, had the case not already been decided under

Pennsylvania’s land use laws, that Miller should not be entitled to

establish its quarry in a residential zone and prohibition on such uses in

a residential zone does not implicate any federal constitutional rights of

a landowner (Miller). However, since both the remedy to the successful

challenge and the quarry have already been established in the case at

bar, respondent does not make that argument here, but merely points

out that Pennsylvania's land use laws, and specifically the Pennsylvania

Municipalities Planning Code, in providing site-specific relief to the

successful challenger of a zoning ordinance as excluding an otherwise

legitimate use, provide a remedy and a mechanism for challenging land

use regulations. The time it takes to pursue the remedy has not heretofore

constituted a compensable “taking.”

18

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.

In so arguing, the petitioner has confused the issues of

“regulatory takings,” or laws restricting property rights that

are invalid because they go too far, Pennsylvania Coal vy.

Mahon, 260 U.S. 393 (1922), with “takings” in violation of the

Fifth and Fourteenth Amendments, which require compensation

because the property owner has been deprived of all

economically beneficial use of his land “without just

compensation.” Suitum v. Tahoe Regional Planning Agency,

520 U.S. 725, 137 L. Ed. 2d. 980, 117 S. Ct. 1659 (1997).

The petitioner asserts that because the zoning ordinance

was found invalid under Pennsylvania law, that such a finding,

standing alone, entitles the landowner to claim damages for

the period of time which elapsed while the landowner pursued

his state law remedies. This Court has never so held.

This Court has always recognized that normal delays

associated with the process of obtaining zoning relief do not

result in compensable “takings” and has not recognized a cause

of action for “temporary takings” damages unless the regulation

has deprived the property owner of all economically beneficial

use of the property for a period of time. First English

Evangelical Lutheran Church v. County of Loss Angeles, supra.

4. The Pennsylvania Supreme Court alluded to the practical effect

of such a finding in its own footnote 4 (Appendix A) where it stated,

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.

19

To convert all local zoning disputes where the landowner

ultimately prevails into compensable “takings” which entitle

the landowner to claim federal monetary damages from the local

taxpayers whose elected officials in good faith defended the

offending regulation would be a shocking and unwarranted

change in federal constitutional law.

Indeed, if the process of challenging (and defending) a

zoning ordinance in Pennsylvania held out the promise not only

of site-specific relief but also a windfall at the taxpayers’

expense, the entire scheme of regulatory land uses would

probably collapse under the collective weight of the threat of

bankruptcy of the municipal treasury, and the futility of

predicting the result. (For an interesting discourse on the

Commonwealth Court’s inability to predict the Pennsylvania

Supreme Court’s land use opinions, see Commonwealth Court

Judge Craig’s opinion in H & R Builders, Inc. v. Borough

Council of Norwood, 124 Pa. Cmwlth. 88, 555 A.2d 948 (1989),

or the procedural history of the case of Upper Salford Township

and Upper Salford Township Citizens for Open Space v. Patrick

fT. Collins Jr., 162 Pa. Cmwith. 403, 639 A.2d 861 (1994),

reversed at 542 Pa. 608, 669 A.2d 335 (1995)).

Fortunately, that’s never been the law. The Courts have

always recognized that any regulation limits some land owner’s

rights, and that limitation is not a compensable taking. As one

commentator put it:

Some have the view that ownership of a piece of

property entitles the owner to do whatever he or she

pleases with or on the land. This has never been the

law in any country. In Western European

democracies, for example, where many people are

crowded upon a relatively small amount of land, it

is accepted by conservatives and liberals alike that

the government must regulate land use in the general

public interest. No one assumes that the government

must buy land to protect it.

20

“The Takings Issue,” Joanne Denmark, Esquire, et

al., in Forum, Pennsylvania Environmental Council,

Volume 21, Nos. 2 and 2, Summer/Fali 1992.

Although the petitioner concedes that it was never denied

all economically beneficial use of its property by the Plumstead

Zoning Ordinance, it argues that because it was denied the nght

to make use of its property in the way that it wished (a quarry)

for a period of time, it is entitled to claim damages for that

period.* Moreover, the period of time for which damages are

claimed is the time it took to challenge the ordinance in court.

Such has never been the law. Regulatory ordinances have

never been analyzed against the subjective desires of an

individual landowner, but on whether the regulation, as applied

to the particular land, unfairly burdens an individual landowner

with a “cost” or “burden” that should be borne by the public at

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

U.S. 104, 130, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978),

Keystone Coal Association v. DeBenedictis, 480 U.S. 470, 496,

94 L. Ed. 2d 472, 107 S. Ct. 1232 (1987). To hold otherwise

would require legislators to anticipate the secret, subjective

desires of all present and future property owners before enacting

any regulations.

Additionally, so long as the landowner has a Due Process

procedure available to invalidate the law, the process itself has

not given rise to a “temporary takings” claim.

5. Petitioner cites various state court opinions for the proposition

that “temporary takings are compensable in the zoning context,” and

while it is conceded that First English makes that point, state court

decisions on the validity of land use regulations are not relevant to the

considerations involved in seeking certiorari. In addition, land use is

generally a matter of state law, not federal law, and varies greatly from

state to state, making comparisons difficult, if not impossible.

21

In short, petitioner seeks an unwarranted extension of the

“temporary takings” doctrine so clearly enumerated by this

Court in First English, and so faithfully followed by the

Pennsylvania Supreme Court in its opinion below.

CONCLUSION

For the foregoing reasons, respondent notes the

Pennsylvania Supreme Court’s faithful adherence to this Court’s

opinion in First English Evangelical Church v. Court of Los

Angeles, supra, and asserts that petitioner seeks an unwise and

unwarranted extension of the federal “temporary takings”

doctrine which should be refused.

Respectfully submitted,

CATHERINE M. HARPER

Counsel of Record

TIMONEY, KNOX, HASSON

& WEAND, L.L.P.

Attorneys for Respondent

400 Maryland Drive

P.O. Box 7544

Fort Washington, PA 19034-7544

(215) 646-6000