Board of Supervisors v. McClimans

597 A.2d 738, 142 Pa. Commw. 470, 1991 Pa. Commw. LEXIS 526
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 25, 1991
Docket581 C.D. 1986; 1219 C.D. 1990
StatusPublished
Cited by9 cases

This text of 597 A.2d 738 (Board of Supervisors v. McClimans) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of Supervisors v. McClimans, 597 A.2d 738, 142 Pa. Commw. 470, 1991 Pa. Commw. LEXIS 526 (Pa. Ct. App. 1991).

Opinions

COLINS, Judge.

The Board of Supervisors of Shenango Township (Board of Supervisors or appellant) appeals from an order of the Court of Common Pleas of Lawrence County (Common Pleas), dated May 24,1990, reaffirming its prior opinion and order of January 31, 1990, and dismissing appellant’s motion for post trial relief.

[473]*473McClimans, et al., landowners of parcels of land, together comprising approximately one thousand acres (property), in Shenango Township, Lawrence County, Pennsylvania, executed leases to Amerikohl Land Company (landowners and lessee, hereinafter collectively referred to as appellees) to strip mine coal on their property. The property is zoned R-l Residential. Under the then existing terms of the Shenango Township Zoning Ordinance (zoning ordinance), adopted May 22, 1967 and effective May 27, 1967, surface mining was not a permitted use in an R-l Zone.1

Appellees filed with the Board of Supervisors a challenge to the validity of the zoning ordinance and a request for curative amendment to the zoning ordinance to rezone the property as a special uses district, allowing surface mining as a matter of right. Following a public hearing, the Board of Supervisors by written decision dated March 8, 1985, rejected the validity challenge and denied the request for curative amendment. Appellees appealed to Common Pleas which, by opinion and order dated January 29, 1986, affirmed the Board’s decision. Upon further appeal, this Court in McClimans v. Board of Supervisors of Shenango Township, 107 Pa. Commonwealth Ct. 542, 529 A.2d 562 (1987) (McClimans I), remanded to Common Pleas for the taking of additional evidence or for further remand to the Board of Supervisors “for a determination of whether the Township’s zoning ordinance conclusively [prevented Appellees] from gaining access to their subsurface property, thus rendering the ordinance invalid as a taking without just compensation.” Id., 107 Pa.Commonwealth Ct. at 559, 529 A.2d at 570 (footnote omitted).

The McClimans I Court further stated:

If a ‘taking’ is found to exist, the Township of course has the option of retaining the ordinance as is and paying the owners of the coal estate just compensation. If there is a [474]*474‘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 [appellees] by the ‘temporary taking.’ ... This just compensation would include damages [appellees] could prove as a result of the delay in extracting the coal caused by the Township’s ordinance.

Id,., 107 Pa.Commonwealth Ct. at 558, 529 A.2d at 570 (citation omitted).

On remand, Common Pleas held several hearings on the issue of whether the coal could be extracted from the property without violating the zoning ordinance. Both parties presented expert testimony on the issue. In addition, appellant presented testimony from two lay witnesses who had participated in and were familiar with mining operations in Shenango Township involving the same coal deposit that is the subject of this controversy. Common Pleas resolved credibility in favor of appellees’ experts and concluded that appellees had met their burden of proving by a preponderance of the evidence that the zoning ordinance conclusively prevented them from gaining access to their coal. Therefore, by opinion and order dated January 81, 1990, Common Pleas held that the zoning ordinance effected a taking of appellees’ property without just compensation. On March 9, 1990, Common Pleas granted appellant’s motion for reconsideration; and on May 24, 1990, Common Pleas reaffirmed its prior decision of January 31, 1990 and denied appellant’s motion for post-trial relief. This appeal followed.2

In light of the fact that prior to oral argument the zoning ordinance was amended February 8, 1990, to allow surface mining, this matter would be moot. However, it [475]*475was contended by appellees at oral argument on this matter that they would be entitled to damages for a partial taking for the period of time from which this action was initiated until the amendment of the zoning ordinance. Therefore, we will address the merits.

Appellant presents the following issues for our review: (1) whether Common Pleas erred in applying a preponderance of the evidence standard of proof in determining whether the zoning ordinance conclusively prevented appellees from gaining access to their subsurface property; (2) whether state and federal environmental and safety regulations enacted subsequent to the zoning ordinance prevented appellees from gaming access to their coal estate, rather than the zoning ordinance; and (3) whether the zoning ordinance conclusively prevented appellees from gaining access to their subsurface coal estate.

Where, as here, Common Pleas takes additional evidence, we are limited to determining whether Common Pleas abused its discretion or committed an error of law. Lamb v. Zoning Board of Adjustment of the Borough of Ambridge, 111 Pa.Commonwealth Ct. 534, 534 A.2d 577 (1987). We may conclude that Common Pleas abused its discretion only if its findings are not supported by substantial evidence. Valley View Civic Ass’n v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). Substantial evidence has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id., 501 Pa. at 555, 462 A.2d at 640.

Appellant argues that Common Pleas applied the wrong evidentiary standard in weighing the evidence presented by appellees on the issue of whether they were conclusively prevented from accessing their coal estate. Common Pleas adequately addressed this issue in both its January 31, 1990 and May 24, 1990 opinions. Common Pleas correctly noted that although the courts have characterized the burden in these matters as a heavy one, there is no case law suggesting that proof by more than a prepon[476]*476derance of the evidence is required. Although use of the word “conclusively” in McClimans I

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Bluebook (online)
597 A.2d 738, 142 Pa. Commw. 470, 1991 Pa. Commw. LEXIS 526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-supervisors-v-mcclimans-pacommwct-1991.