Tessitor v. Pennsylvania Department of Environmental Resources

682 A.2d 434, 1996 Pa. Commw. LEXIS 384
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 12, 1996
StatusPublished

This text of 682 A.2d 434 (Tessitor v. Pennsylvania 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
Tessitor v. Pennsylvania Department of Environmental Resources, 682 A.2d 434, 1996 Pa. Commw. LEXIS 384 (Pa. Ct. App. 1996).

Opinions

McGINLEY, Judge.

David Tessitor (Tessitor) petitions for review of an order of the Environmental Hearing Board (Board) which dismissed his appeal from the grant of a permit to the Port Authority of Allegheny County (PAT) by the Department of Environmental Protection, formerly the Department of Environmental Resources (Department).

The Department issued a water obstruction and encroachment permit authorizing PAT to rehabilitate, maintain and remove existing structures and construct and maintain new bridges across Chartiers Creek and the Monongahela River as well as construct interchange ramps in the floodplain of Char-tiers Creek in the City of Pittsburgh, Pennsylvania. The special conditions of the permit specifically provided for compliance with all applicable state water quality standards.

Tessitor and Ed L. Stewart (Stewart) appealed to the Board contending that the grant of the water obstruction and encroachment permit will increase transit emissions resulting in a decline of the environmental quality surrounding their community. Tessitor asserted that he will be adversely affected by the environmental degradation as “a resident of Allegheny County and a user of public transportation” whereas, Stewart, as[436]*436serted that he will be adversely affected as “a resident of Crafton, Allegheny County, a community adversely affected by the approval of the permit in question.” Notice of Appeal, Filed December 30, 1994, at 1; Reproduced Record (R.R.) at 2a.1

In response, the Department filed a motion to dismiss, asserting that the two appellants lacked standing to challenge the issuance of the permit because they did not express “any interest in the Department’s action which would exceed the interest of the general public in ensuring compliance with environmental laws.” Motion to Dismiss for Lack of Jurisdiction, Filed March 20, 1995, (Motion) at 4, Paragraph No. 13; R.R. at 8a. The Department also asserted that the appellants “made no factual allegations that establish a causal connection between the Department’s issuance of a Water Obstruction and Encroachment Permit and degradation of air quality_” Motion at 5, Paragraph No. 20; R.R. at 9a. The Department added that “the permit issued by the Department does not authorize air emissions....” Memorandum of Law in Support of Motion to Dismiss, Filed March 20, 1995, at 6; R.R. at 18a.

Tessitor argued that he “uses the streams and property affected as a hiker, bird watcher, fisherman and outdoorsman.” Appellant’s Response to Motion to Dismiss, Filed April 12, 1995, Paragraph No. 13 at 1; R.R. at 19a. Tessitor argued further that the construction authorized by the permit “would increase transit emissions” and that “[t]he direct link between the permit issuance and the air quality degradation is that the permit would allow the building of the busway and the subsequent air degradation.” Id. at 2; R.R. at 20a. With only two of five Board member positions filled at the time of the Board’s opinion and order dated May 4,1995, the two Board members granted the Department’s motion determining that the appellants failed to allege or establish a close causal connection between the activities sanctioned under the water encroachment permit and the alleged harm to the environment.

On appeal to this Court, Tessitor contends that the Board’s decision is invalid because the Board did not have enough members to constitute a quorum. Tessitor also contends that he had standing to challenge the Department’s action. Our scope of review of Board decisions is limited to determining whether the Board committed any errors of law or constitutional violations, or whether its necessary findings of fact are supported by substantial evidence. T.R.A.S.H., Ltd. v. Department of Environmental Resources, 132 Pa.Cmwlth. 652, 574 A.2d 721, petition for allowance of appeal denied, 527 Pa. 659, 593 A.2d 429 (1990).

Initially, Tessitor contends that a Board whose membership is so depleted that it is less than a quorum of its authorized members cannot act. This Court addressed a similar issue in Mercy Regional Health System v. Department of Health, 165 Pa. Cmwlth. 629, 645 A.2d 924 (1994), where petitioners alleged that a two to one vote by the members of State Health Facility Hearing Board granting a certificate of need was invalid. The petitioners argued that three votes were required to grant the certificate because a majority vote of the members was necessary and the number of authorized members had been increased to five.2 Even though the number of members was statutorily increased, no one had been appointed at the time of the vote on February 25, 1993. We made the following observations:

A board is composed of those members serving and voting, not the number authorized to serve_ [T]he legislature specifically declared that no member could participate in a decision if he or she has an economic interest or other conflict of interest. Besides a conflict of interest, there may be many circumstances in which one or two of the active members cannot participate. For example, an extended illness may keep a member from reviewing and voting on appeals. Moreover, a member may resign and the position remains va[437]*437cant until another member is appointed. In such situations, all appeals to the Hearing Board need not be accumulated and detained until that member is able to continue in his or her position or a new member is appointed.5

Id, at 927-928.

Citing DiGiacinto v. City of Allentown, 486 Pa. 436, 406 A.2d 520 (1979), we noted that where there is no language to the contrary in the relevant statutes or regulations the courts apply the common law rule that a majority of those voting in the presence of a quorum3 can act for a body as a whole. We determined that no specific number of members was required by legislation and held that a majority vote of three members was sufficient for the State Health Facility Hearing Board to act as a quorum because only three members were eligible to participate in the decision.

In the present controversy, there is no dispute that there were only two Board members at the time of the decision despite the requirement of Section 3(b) of the Environmental Hearing Board Act (Act), Act of July 13, 1988, P.L. 530, as amended, 35 P.S. § 7513(b), that “[t]he board shall consist of five members.” Neither the enabling statute nor any regulation enacted thereunder sets forth a minimum number of members required for the Board to act. We see no reason why a gubernatorial or legislative lag in appointing or approving Board members should delay the Department’s swift disposition of disputes within its jurisdiction. The two eligible members were, in fact, present and participated in the decision and because of the vacancies, under the common law rule, a majority vote of that number was valid. Here, two votes constituted a majority.

We now turn our attention to whether Tessitor had standing to challenge the grant of the water encroachment permit by the Department to PAT. To have standing to initiate a legal action, a party must have a direct and immediate interest in the subject matter of the litigation.

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Related

South Whitehall Township Police Service v. South Whitehall Township
555 A.2d 793 (Supreme Court of Pennsylvania, 1989)
Mercy Regional Health System v. Department of Health
645 A.2d 924 (Commonwealth Court of Pennsylvania, 1994)
Empire Coal Mining & Development, Inc. v. Department of Environmental Resources
623 A.2d 897 (Commonwealth Court of Pennsylvania, 1993)
In Re Francis Edward McGillick Foundation
642 A.2d 467 (Supreme Court of Pennsylvania, 1994)
Commonwealth Ex Rel. Bagnoni v. Klemm
454 A.2d 531 (Supreme Court of Pennsylvania, 1982)
DiGiacinto v. City of Allentown
406 A.2d 520 (Supreme Court of Pennsylvania, 1979)
T.R.A.S.H., Ltd. v. Commonwealth
574 A.2d 721 (Commonwealth Court of Pennsylvania, 1990)

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Bluebook (online)
682 A.2d 434, 1996 Pa. Commw. LEXIS 384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tessitor-v-pennsylvania-department-of-environmental-resources-pacommwct-1996.