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Mock v. Department of Envtl. Resources

ELR Citation: 23 ELR 21290
Nos. No. 1153 C.D. 1992, 623 A.2d 940/(Pa. Commw. Ct., 03/25/1993)

The court holds that the Pennsylvania Department of Environmental Resources' denial of a permit for landowners to fill wetlands on their property to construct an auto body shop did not constitute a taking under either the U.S. or the Pennsylvania Constitutions for which the individuals must be compensated. The court first holds that this case does not fall within the rule of categorical takings, posited in Lucas v. South Carolina Coastal Council, 22 ELR 21104 (U.S. 1992), in which Justice Scalia indicated that a categorical taking, for which compensation would be required, occurs when the owner of property is called on to sacrifice all economically beneficial uses in the name of the common good. The court holds that Lucas is inapplicable to this case because the denial of the permit does not render the land valueless: neither the state law in question nor the department's regulations prohibit the filling of wetlands, and the permit denial did not prohibit all construction on the property. Moreover, this case does not fall into the realm of a Lucas categorical taking, because the department's finding that the property is presently valueless does not mean that the property must remain undeveloped and valueless.

Next, the court examines the owners' claim through the purview of a traditional takings analysis, holding that the department's actions do not effect a taking of the property for which compensation is required. Under its analysis, the court holds that the state is not forcing the owners alone to bear burdens which, in all justice and fairness, should be borne by the public as a whole. Moreover, the owners did not present sufficient evidence of the diminution in their property's value, and the absence of evidence that the land cannot be put to economically viable use weighs against finding a taking. Further, the owners' reasonable investment-backed expectations are not frustrated to the point of effecting a taking of their property, because the department's actions do not destroy their right to develop their property according to some alternative plan.

Counsel for Petitioners
William H. Eastburn III
Eastburn & Gray
60 E. Court St., Doylestown PA 18901
(215) 345-7000

Counsel for Respondents
Martha Blasberg
Department of Environmental Resources
Office of Chief Counsel - SE Region
Lee Park, 555 N. Lane St., Ste. 6015, Conshohocken PA 19428
(215) 832-6300