Gardner v. Com., Dept. of Environmental Resources

• Decision Date: 25 April 1995
• Citation: 658 A.2d 440
• Parties: Peggy Ann GARDNER, Mary Jane Eckert and Barbara Judge v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL RESOURCES, Appellant. Mrs. Peggy Ann GARDNER, Mrs. Barbara Judge and Mrs. Mary Jane Eckert, Petitioners, v. DEPARTMENT OF ENVIRONMENTAL RESOURCES, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 440

658 A.2d 440

Peggy Ann GARDNER, Mary Jane Eckert and Barbara Judge v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL

RESOURCES, Appellant.

Mrs. Peggy Ann GARDNER, Mrs. Barbara Judge and Mrs. Mary

Jane Eckert, Petitioners, v. DEPARTMENT OF ENVIRONMENTAL RESOURCES, Respondent.

Commonwealth Court of Pennsylvania.

Argued March 14, 1995.

Decided April 25, 1995.

Virginia J. Davison, Asst. Counsel, for appellant, respondent Dept. of Environmental Resources.

Stanley R. Geary, for appellees, petitioners Gardner, Eckert and Judge.

Before SMITH and PELLEGRINI, JJ., and NARICK, Senior Judge.

PELLEGRINI, Judge.

Before us are consolidated appeals arising from the efforts of a property owner to seek compensation for coal rights under land that was taken as part of Moraine State Park. This is the second time this case has been before this court. In Gardner v. Department of Environmental Resources, 145 Pa.Commonwealth Ct. 345, 603 A.2d 279 (1992) (Gardner I ) we determined that the taking issue was not ripe for adjudication because Peggy Ann Gardner, Mary Jane Eckert and Barbara Judge (collectively, Gardners) did not request a variance under the statute prohibiting the mining of the coal from the Commonwealth of Pennsylvania, Department of Environmental Resources (DER). Before us today are DER's appeal of the order of the Court of Common Pleas of Butler County (trial court) finding that the case was ripe for adjudication and appointing a Board of Viewers to determine damages. We also have Gardners' cautionary petition for review of an order of the Environmental Hearing Board (EHB) deciding that the case is not yet ripe for determination because Gardners had not exhausted their administrative remedies necessary to determine whether a taking had occurred.

In 1967, the 189.325-acre property in question was condemned for recreational purposes by DER's predecessor agency, the Department of Forests and Water, except that the rights pertaining to surface mining of coal upon the premises were not taken. ¹ At that time, the Department of Forests and Water indicated that it had no objection to the removal of coal from the property. No mining occurred after the condemnation.

In 1971, the Surface Mining Conservation and Reclamation Act (Pa.SMCRA), Act of May 31, 1945, P.L. 1198, as amended, 52 P.S. §§ 1396.1-1396.31, ² was amended to prohibit mining within 300 feet of a public park, except by variance based on special circumstances. Section 4.2(c) of Pa.SMCRA, 52 P.S. § 1396.4b(c), provides:

no operator shall conduct surface mining operations ... within three hundred feet of any public building, public park, school.... The secretary may grant operators variances to the distance requirements herein established where he is satisfied that special circumstances warrant such exceptions and that the interest of the public and landowners affected thereby will be adequately protected.... (Emphasis added.)

In 1988, because mining was prohibited, absent a variance, Gardners filed a petition for the appointment of viewers in the court of common pleas claiming a de facto taking of their mining rights had occurred by the statutory prohibition of mining in public parks. Denying their request for the appointment of viewers, the trial court held that Gardners had not exhausted the administrative remedies to obtain permission to remove the coal through the variance procedures in Section 4.2(c) of Pa.SMCRA. On appeal, this Court agreed that the Gardners' claim was not ripe because they had not applied for a variance that may be available under the statute and, therefore, there was no final decision of the agency regarding the application of the regulations to the property at issue. Gardner I.

To obtain a "final decision" from DER, the Gardners then requested DER to preliminarily determine whether they would qualify for a variance. DER responded in several letters that specific information was necessary before a determination could be made, including information on exploration and operation of their proposed mine and on reclamation plans. Arguing both that no grounds existed for a variance and that DER had no intention of granting them a variance, the Gardners appealed to the EHB the requirement that extensive information be provided before a variance determination was made by DER. Before the EHB, DER and Gardners entered a "Consent Adjudication" stipulating, in pertinent part:

1. The Department and the Gardners agree that the information presently available to the Department is sufficient for the Department to rule upon a variance to conduct surface coal mining activity in Moraine State Park.

2. The Department hereby denies the variance.

3. The Gardners may appeal this denial to the Environmental Hearing Board as a final action of the Department.

....

6. The parties agree that the Department will undertake a program of geophysical testing and drilling ... ³

(R.R.A 26a). The EHB approved the Consent Adjudication on March 17, 1993. The Gardners did not take an appeal as to any of the issues addressed in the Consent Adjudication, including the denial of the variance.

After the geological studies required by the Consent Adjudication were completed, Gardners asked DER to compensate them for the loss of their mining rights to the coal deposits discovered in the testing based on their belief that such a request was contemplated by the Consent Adjudication after the studies. DER refused to compensate them for their coal rights because they questioned whether the coal could be economically mined in accordance with all relevant laws. Based on DER's refusal to compensate them for the coal deposits, the Gardners filed two different actions. They appealed DER's refusal to compensate them to the EHB as well as filing a Petition for the Appointment of a Board of Viewers with the trial court seeking compensation for the coal in the property.

To their Petition for a Board of Viewers to the trial court, the Gardners attached the Consent Adjudication arguing that Gardner I stood for the proposition that DER's denial of a variance constitutes a taking making the issue "ripe." DER filed preliminary objections to the Board of Viewers Petition again contending Gardners' taking action was not ripe because they did not exhaust their administrative remedies by appealing the variance denial. Moreover, DER contended that its actions were an exercise of its regulatory police power and not its eminent domain powers so there was no taking. The trial court granted the petition for appointment of a Board of Viewers and dismissed DER's preliminary objections, holding the taking action was ripe and that a taking had occurred. ⁴

As to Gardners' appeal before the EHB, the EHB held that it generally has jurisdiction to determine if a taking occurred by DER's actions but that it did not have jurisdiction in this case because Gardners failed to exhaust their administrative appeals by appealing the variance denial before seeking a determination that a taking had occurred. The EHB stated that, if the claim had been ripe, after going through the taking analysis, they would have determined that a taking had occurred. Unlike the trial court, the EHB in effect adopted DER's position that Gardners were required to exhaust their administrative remedies by appealing the variance denial before the taking claim was ripe for determination.

Before this court are DER's appeal from the trial court decision appointing a Board of Viewers ⁵ and Gardners' petition for review of the EHB's decision ⁶ holding that the taking issue was not ripe. As to the trial court's decision, DER contends that the trial court erred in determining that an appeal to the EHB of the variance denial is not necessary under the exhaustion of administrative remedies doctrine. DER also contends there has been no determination that a taking has occurred and therefore the trial court's action in appointing a Board of Viewers is in error. DER also argues that it was acting under its police powers which cannot result in a taking. Conversely, as to the EHB's decision, Gardners contend the EHB erred in holding that they were required to pursue an appeal to the EHB of the variance denial, and that the determination of whether a regulatory taking has occurred is solely within the province of the court of common pleas. ⁷

The central issue in both appeals is whether the taking claim was ripe for adjudication or whether the Gardners must first exhaust their administrative appeals of the variance denial. If this claim is ripe, we must then determine whether the EHB or the trial court has jurisdiction to determine whether a taking had occurred by DER's actions.

I.

DER contends that the trial court erred in appointing a Board of Viewers because Gardners were required to exhaust their administrative agency appeals before the taking claim became ripe. Ripeness and exhaustion are similar in that they both deal with timing of judicial review but they are distinct concepts. Ripeness arises out of a judicial concern not to become involved in abstract disagreements of administrative policies. Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). It has been defined as the presence of an actual controversy. American Council of Life Insurance Companies v. Foster, 134 Pa.Commonwealth Ct. 634, 580 A.2d 448 (1990). It insists on a concrete context, where there is a final agency action so that the courts can properly exercise their function. The doctrine of ripeness is described as a legal principle "instructing courts to review government actions only when the government's position has crystallized to the point at which a court can identify a relatively discrete dispute." Davis & Pierce, Administrative Law Treatise, vol. II, § 15.12 (3rd edition). The doctrine requires a court to evaluate the fitness of the issues for judicial determination, as well as the hardship to the parties of...