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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 525 U.S. 1121

## Text

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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PN ER NA AO ita he tte ie anaes ys nitaediad

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1210%3A2. Public record. Not legal advice.