Agenda - Planning Commission - 11/04/1997

Home

Z.B. October 10,1997 - Page 5 Taking - Company says ordinance which prevents mining is a taking Stabler Development Company v. Board of Supervisors of Lower Mt. Bethel Township, Pennsylvania, 695 A.2d 882 (Pennsylvania) 1997 Alpha Portland Industries owned a large tract of land in Lower Mt. Bethel Township, Pa., which was divided by a road. For decades, the company used the 800 acres west of the road for sand and gravel quarrying. In 1972, the 28 acres east of the road were rezoned "low density residential," a zone in which quarrying and mining were not permitted. In 1983, another mining company bought the land. It began mining the 28 acres, claiming mining was permitted on the property as a prior nonconforming use. The township sued the company, seeking a court order preventing the company from mining the 28 acres. The court denied its request, and the township appealed. The appeals court reversed and ordered the company to stop mining the smaller . tract. The court found that because the 800-acre and the 28-acre tracts were noncontiguous, mining was not a legal nonconforming use on the 28-acre tract. Seven years later, the company renewed its effort to quarry the 28 acres by asking the township to amend the ordinance. The company claimed the ordinance was an unconstitutional taking of its mineral rights in the 28 acres, so the township should either amend the ordinance or pay just compensation for the lost mineral rights. (Pennsylvania courts had previously recognized "mineral estates" sepan'te from other potential uses of property in coal, limestone, flint clay, iron ore, and certain types of sand with unique characteristics.) The township's board of supervisors dismissed the company's request. It found that because sand and gravel were extremely common, they didn't constitute a separate interest in the land for zoning purposes. The company appealed to court. The court upheld the board's decision. It noted that various courts had recognized separate mineral estates in coal and certain types of sand and rock, but found that because only the coal cases involved land use regulations, the state recognized a separate mineral estate with respect to land use regulations only in coal. The company appealed. DECISION: Affirmed. . ,- Preventing the mining of sand and gravel from a particular piece of land was not a taking. Zoning the 28 acres residential was a valid exercise of the township's zoning powers, and sand and gravel did not constitute a separate estate in land. Because all zoning involved a taking in the sense that landowners weren't completely free to use their property as they chose, a taking didn't entitle landowners to compensation unless the owners' rights were unreasonably restricted. Here, the board found the proposed use would have a significant and adverse effect on the health, safety and welfare of the community. Contrary to the company's argument, Pennsylvania had never recognized a mineral estate in sand and gravel the way it had for coal. ~ see also: Miller & Son Paving v. Wrightstown Township, 451 A.2d 1002 (19.82).