37 Pa. Commw. 608 | Pa. Commw. Ct. | 1978
Opinion by
The Department of Environmental Resources (DER) and the General State Authority (appellants) appeal here from an order of the Court of Common Pleas of Luzerne County which dismissed their preliminary objections to a petition for the appointment of a board of view filed by Timothy J. and J. Emmett Reilly (appellees).
The appellees purchased a large tract of undeveloped land in Dennison Township, Luzerne County in 1961. In 1964, the County Board of Commissioners enacted a zoning ordinance under which the appellee’s land was zoned Conservation or C-1 which essentially permitted uses which would not be discordant with the rural character of the area. Beginning in 1962,
In June 1973, the appellees filed a petition for the appointment of a board of view pursuant to Section 502(e) of the Eminent Domain Code,
Our Supreme Court has held that a taking occurs when the entity clothed with the power of eminent domain substantially deprives an owner of the use and enjoyment of his property. Griggs v. Allegheny County, 402 Pa. 411, 414, 168 A.2d 123, 124 (1961), rev’d on other grounds, 369 U.S. 84 (1962). The lower court here essentially concluded that the appellants’ actions in protesting the rezoning of the appellees’ property C-1 to S-1 precipitated the zoning of the property back to C-1 and that this constituted a de facto taking by the appellants. Because we do not believe that the rezoning back to C-1, whether caused by the appellants or not, constituted a taking under the Eminent Domain Code, we must reverse the order of the lower court.
In concluding that a de facto taking had occurred, the lower court equated the use limitations imposed on the property by the C-1 zoning with the deprivation of use and enjoyment involved in a de facto taking. The enactment of an ordinance rezoning property which thereby restricts its use, however, is an exercise of municipal police power and not the power of eminent domain. This distinction was explained by our Supreme Court in White’s Appeal, 287 Pa. 259, 264-65, 134 A. 409, 411 (1926), as follows:
Police power should not be confused with that of eminent domain. Police power controls the use of property by the owner, for the public good, its use otherwise being harmful,*612 while eminent domain and taxation take property for public use. Under eminent domain, compensation is given for property taken, injured or destroyed, while under the police power no payment is made for a diminution in use, even though it amounts to an actual taking or destruction of property.... If .. . there is doubt as to whether the [ordinance] is enacted for a recognized police object, or if, conceding its purpose, its exercise goes too far, it then becomes the judicial duty to investigate and declare the given exercise of the police power invalid. . . .
The lower court reasoned that the rezoning took the appellees’ property without just compensation because its use was therefore severely restricted. The Supreme Court in White’s Appeal, supra, however, also considered this contention and stated:
No matter how seemingly complete our scheme of private ownership may be under our system of government, all property is held in subordination to the right of its reasonable regulation by the government clearly necessary to preserve the health, safety, or morals of the people. Obedience to such regulation is not taking property without due process; that clause does not qualify the police power.
287 Pa. at 265, 134 A. at 411.
We do not believe that the appellees here have alleged and proven any significant deprivation of the use and enjoyment of their property such as would be necessary to support an allegation of a de facto taking. See, e.g., Conroy-Prugh Glass Co. v. Commonwealth, 456 Pa. 384, 321 A.2d 598 (1974); Peter Roberts Enterprises v. Department of Transportation, 31 Pa. Commonwealth Ct. 479, 376 A.2d 1028 (1977); Reingold v. Urban Redevelopment Authority,
Order
And Now, this 18th day of September, 1978, the order of the Court of Common Pleas of Luzerne County docketed at 4100 of 1973 and dated March 1, 1977, is hereby reversed.
Act of June 22, 1964, P.L. 84, Special Sess., as amended, 26 P.S. §1-101 et seq.
Act of August 9, 1955, P.L. 323, as amended, 16 P.S. §101 et seq.
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10101 et seq.
We are unpersuaded by tbe appellees’ argument that these sections did not provide a remedy at the time of the rezoning. Section 2031(a) would have permitted judicial review of the zoning-officer’s denial of building permits following the rezoning.