Hatchard v. Department of Environmental Resources
| Decision Date | 10 February 1993 |
| Citation | 149 Pa.Cmwlth. 145,612 A.2d 621 |
| Parties | George W. HATCHARD, Petitioner, v. DEPARTMENT OF ENVIRONMENTAL RESOURCES, Respondent. |
| Court | Pennsylvania Commonwealth Court |
Mark S. Love, for petitioner.
Nels J. Taber, Asst. Counsel, for respondent.
Before COLINS and PALLADINO, JJ., and BARRY, Senior Judge.
George W. Hatchard (Petitioner) appeals from an order of the Environmental Hearing Board (EHB) which affirmed the decision of the Department of Environmental Resources (DER) denying a permit application to Petitioner. We affirm.
Petitioner is the owner of commercial property in the Borough of Mt. Pocono, Monroe County, Pennsylvania. The property consists of an office building, a parking lot, and wetlands areas. Mt. Pocono Family Care Center (Center) is one of the tenants in the office building.
In May of 1985, Petitioner placed fill on approximately 5,400 square feet of wetlands on the property to create an additional parking lot for the Center. Petitioner failed to obtain the necessary permits from DER or the Army Corps of Engineers (Corps).
Subsequent to the placement of the fill, the Corps informed Petitioner that filling wetlands was illegal without a permit, and issued a cease and desist order to Petitioner. Petitioner then applied for an after-the-fact federal permit from the Corps, which denied the application on December 24, 1986, and directed Petitioner to remove the fill and restore the area to its previous condition.
On January 7, 1987, Petitioner applied for an after-the-fact state permit from DER under the Dam Safety and Encroachments Act (Act), Act of November 26, 1978, P.L. 1375, as amended, 32 P.S. § 693.1-.27. 1 By letter dated January 28, 1988, DER denied Petitioner's permit application, determining that Petitioner did not adequately justify the need to fill in the wetlands, or sufficiently consider alternatives in design, location, and construction to minimize the adverse impacts of the filling. DER concluded that the fill would cause significant environmental damage without creating a concomitant public benefit, and that the proposed project was not water dependent.
Petitioner appealed to EHB. DER filed a motion for summary judgment, which was denied. A hearing was conducted before EHB on September 27, 1990, after which EHB affirmed the January 28, 1988 determination of DER. Petitioner appealed to this court.
On appeal, the issues raised by Petitioner are: 1) whether EHB erred in determining that Petitioner failed to justify the need to fill in the wetlands, 2) whether EHB erred in determining that DER did not abuse its discretion by soliciting comments from the Pennsylvania Fish Commission and various federal agencies regarding Petitioner's permit application, and 3) whether EHB erred in affirming DER because DER allegedly failed to properly apply or correctly interpret its own regulations in reviewing Petitioner's permit application.
Our scope of review of an EHB decision is limited to determining whether constitutional rights have been violated, whether an error of law has been committed, or whether necessary findings of fact are supported by substantial evidence. Bichler v. Department of Environmental Resources, 144 Pa.Commonwealth Ct. 55, 600 A.2d 686 (1991).
As to the first issue, whether Petitioner failed to justify the need to fill in the wetlands, 25 Pa.Code § 105.13 requires that one who applies for a permit for a project that impacts a wetland shall accompany the permit application with, among other things, maps, plans and analyses specifically required by Chapter 105, and additional information as required by DER. One of the analyses required by Chapter 105 is an alternatives analysis, which is an analysis of alternatives to location, construction and design to avoid or minimize adverse environmental impacts. 25 Pa.Code § 105.13(d)(1)(viii). Chapter 105 also requires a statement on water dependency when the project affects wetlands, as here. 25 Pa.Code § 105.13(d)(1)(x)(C). Dependency is based on the demonstrated unavailability of any alternative location to avoid or minimize the adverse impact on the environment. 25 Pa.Code § 105.14(7). 2
Petitioner's permit application dated January 7, 1987 did not include information regarding alternatives or water dependency. Therefore, DER requested Petitioner, by letter dated April 14, 1987, to justify the filling of the wetlands by submitting an alternatives/justification analysis for the proposed parking lot. The DER letter further stated that the requested information "should address the need to fill wetlands and to consider alternatives in location, design, and construction to minimize the adverse impact to [sic] this project upon the environment." April 14, 1987 letter from DER to Petitioner.
On June 9, 1987, Petitioner responded by letter to DER's request for information, stating that the physical infirmity of the Center's patients justified placing the parking lot on the wetlands next to the Center. Petitioner also stated that there were no alternatives to location, and that he was willing to create new wetlands to replace those that he had filled. Petitioner also submitted letters from Center medical professionals who indicated the need for additional parking because of an increase in patients, and the necessity of locating the parking lot on the wetlands.
Petitioner argues that these letters adequately justify the need to place the fill on the wetlands, and correctly indicate that there are no alternatives because the purpose of the project is to provide parking close to the Center for ill and physically infirm patients.
DER contends, and EHB determined, that Petitioner did not adequately justify the need to fill in the wetlands because several alternatives exist to placing the parking lot on the wetlands. These alternatives, as found by EHB, include designating existing parking spaces adjacent to the Center for the exclusive use of patients, extending the parking lot to non-wetland areas for the rental property as a whole, and using the spaces which are presently used by Rent-A-Wreck vehicles as additional parking spaces for the Center. DER also contends, and EHB determined, that Petitioner did not justify the need to locate the parking lot in or near water.
Because Petitioner's parking needs could be satisfied by utilization of the available alternatives, and because Petitioner failed to address water dependency or submit an alternatives/justification analysis as required by the Code and as requested by DER, EHB correctly concluded that Petitioner did not adequately justify the need to fill in the wetlands.
As to the second issue, whether EHB erred in determining that DER did not abuse its discretion, Petitione...
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