Mock v. Department of Environmental Resources

623 A.2d 940, 154 Pa. Commw. 380, 23 Envtl. L. Rep. (Envtl. Law Inst.) 21290, 1993 Pa. Commw. LEXIS 186
CourtCommonwealth Court of Pennsylvania
DecidedMarch 25, 1993
Docket1153 C.D. 1992
StatusPublished
Cited by11 cases

This text of 623 A.2d 940 (Mock v. Department of Environmental Resources) 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
Mock v. Department of Environmental Resources, 623 A.2d 940, 154 Pa. Commw. 380, 23 Envtl. L. Rep. (Envtl. Law Inst.) 21290, 1993 Pa. Commw. LEXIS 186 (Pa. Ct. App. 1993).

Opinions

CRAIG, President Judge.

Conrad and Barbara Mock appeal from a decision of the Pennsylvania Environmental Hearing Board, which upheld the Department of Environmental Resources’ denial of the Mocks’ permit to fill wetlands on their property to construct an auto repair shop, and also ruled that the department’s denial did not effect an unconstitutional taking of the Mocks’ property.

The Mocks do not challenge the board’s determination that the department correctly denied the permit application under the applicable statutes and regulations. Therefore, the sole question for our review is whether the department’s permit denial accomplished a taking, under the U.S. and Pennsylvania Constitutions, for which the Mocks must be compensated.

Because the circumstances of this case do not fall within the newly articulated categorical rule in Lucas v. South Carolina Coastal Council, — U.S. -, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), nor do they qualify as a taking under traditional [383]*383takings analysis, we hold that the board did not err in deciding that the Mocks did not suffer a unconstitutional taking when the department denied their permit application.

BACKGROUND

The relevant facts from the record are as follows. The Mocks are part-owners of a 5.2 acre tract of land in Bucks County, Pennsylvania, which they bought in 1963. The western edge of the parcel fronts along a busy road in a “C-2 Highway Commercial District” as designated by the local zoning ordinance.1 Auto repair shops are a permitted use in the Highway Commercial District, under section 1401a of the Ordinance. All of the parcels surrounding the Mocks’ site have been developed, but the Mocks have not subdivided or developed their land since they bought it in 1963.

Of the 5.2 acres on the site, 3.94 acres are wetlands, as defined by the department’s regulations at 25 Pa.Code § 105.-I.2 The Mocks do not dispute the definition or delineation of the wetland areas on their property. The approximately 1/4 acres of non-wetlands, known as upland areas, are located in the southwest and southeast corners of the parcel, are rather steeply sloped in places, and are separated by approximately 100 feet of wetlands. A stream, Pine Run Creek, runs roughly along the northern boundary of the property.

In 1988 the Mocks applied to the department for a permit3 to fill .87 acres of wetlands on their property, to enable them to build their proposed auto repair shop and its associated driveways and parking spaces. The department regulates [384]*384activities which may affect wetlands under the provisions of the Dam Safety and Encroachments Act, (Act), Act of November 26, 1978, P.L. 1375, as amended, 32 P.S. §§ 693.1-693.27, and according to the regulations implementing the Act in 25 Pa.Code §§ 105.1-105.451.

The department conducted a preliminary review of the Mocks’ application and concluded that the project, as proposed, presented potentially significant adverse environmental impacts under the criteria listed in 25 Pa.Code § 105.14(b). In a letter to the Mocks dated September 23, 1988, the department specified that the proposed project had an impact on the wetland ecology, and that the auto repair shop did not need to be built close to water, two relevant concerns under 25 Pa.Code §§ 105.14(b)(4) and (b)(7).

In that letter, the department also requested that the Mocks submit additional information about alternatives to the project which could reduce the adverse environmental impacts, additional information about the need for the project and its resulting public benefits, and its effect on the natural condition of the wetlands involved. The department identified these issues as necessary considerations pursuant to 25 Pa.Code §§ 105.15 and 105.16. As part of the preliminary review, the department also considered the recommendations of other agencies involved in granting a permit to fill wetlands, in particular, the Pennsylvania Fish Commission, the Environmental Protection Agency, and the U.S. Fish and Wildlife Service. The record reveals that all of these agencies recommended denial of the Mocks’ project as proposed.

The Mocks, through their engineering consultant Russell Benner, responded to the department’s preliminary review in a letter dated September 30, 1988, in which he suggested moving the location of the building, offered to maintain a buffer between the project and the wetlands through a conservation easement and by planting trees, and noted that the Mocks’ plan provided for a wetland replacement area of .38 acres to compensate for the proposed filling of .87 acres. Mr. Benner also noted that he considered the application complete at that time, and that all matters had been adequately dis[385]*385cussed. His letter to the department stated, “[w]e will not accept the permit application being deemed incomplete in lieu of taking action on the permit request, therefore we hope that future correspondence from your office will address a conditional approval of, or a denial of the permit application.”

In October 1988 the department contacted Mr. Benner to suggest that the Mocks consider limiting their construction to the uplands portion of their property. Mr. Benner responded that this proposal would require the Mocks to secure a variance from the township’s setback requirements,4 and that he would pursue that alternative. The Mocks did not submit any alternative proposals to the department.

Thereafter, the department completed its review of the Mocks’ application. In a letter dated April 12, 1990, the department notified the Mocks that their application was denied. The reasons for the denial were similar to the ones the department gave in its preliminary review, namely, that the project adversely affected wetlands and wetland ecology, that the Mocks did not demonstrate that alternatives with less impact on wetlands did not exist to attain the goals of the project, and that the public benefits of the project did not outweigh the environmental harms.

The Mocks appealed the denial to the Environmental Hearing Board, arguing that the department erred in denying their permit, and that the department’s action constituted a taking of their property. Before the board ruled, the department and the Mocks met to discuss possibilities for settlement. In the course of that meeting the department again suggested that the Mocks consider using only the upland portions of the property for their shop, but the Mocks rejected that idea as economically infeasible. The department also suggested using the property for a wetlands nursery, but the Mocks rejected that idea as well.

After two days of hearings, in which it took additional evidence, the board upheld the department’s denial in a decision issued on May 1, 1992. After concluding that it had [386]*386jurisdiction over the Mocks’ appeal, the board ruled that the department correctly denied the project permit and that the denial did not constitute a taking. From the board’s ruling that the department’s action did not effect an unconstitutional taking, the Mocks appeal to this court.

THE ENVIRONMENTAL HEARING BOARD’S DECISION

The board’s decision consisted of extensive findings of fact, discussion, and conclusions of law.

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Mock v. Department of Environmental Resources
623 A.2d 940 (Commonwealth Court of Pennsylvania, 1993)

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Bluebook (online)
623 A.2d 940, 154 Pa. Commw. 380, 23 Envtl. L. Rep. (Envtl. Law Inst.) 21290, 1993 Pa. Commw. LEXIS 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mock-v-department-of-environmental-resources-pacommwct-1993.