Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Timothy J. Reilly and J. Emmett Reilly, co-partners, trading and doing business as Reilly Contracting Co. v. Commonwealth of Pennsylvania, Department of Environmental Resources and The General State Authority, No. 4100 of 1973.
H. Warren Ragot, Assistant Attorney General, with him Theodore A. Adler, Chief Counsel, for appellants.
Thomas L. Kennedy, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by Judge Blatt.
[ 37 Pa. Commw. Page 609]
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,
[ 37 Pa. Commw. Page 610]
however, and continuing at least until 1967, the Department of Forests and Waters (now part of DER) conducted various studies of the area around the property in connection with a proposed state park project to be known as the Nescopeck State Park. In June 1967, and at the request of the appellees, the Luzerne County Commissioners rezoned their property from C-1 to S-1 or Suburban Residence which permitted residential development of the property. When the Department of Forests and Waters learned of this rezoning, its director began correspondence with the Luzerne County Recreation and Parks Commission indicating that the rezoning of the appellees' property imperiled the park project because of the possible escalation of land values caused by the rezoning. Concerned with the possible loss of the state park project, the County Commissioners rezoned the appellees' property back to C-1 on November 15, 1967.
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,*fn1 26 P.S. § 1-502(e). They alleged that the Department of Forests and Waters had caused the County Board of Commissioners to rezone their property to the more restrictive C-1 zoning and that this action by the Commonwealth constituted a condemnation and complete taking of their property as of November 15, 1967, the date on which the rezoning took effect. The General State Authority filed preliminary objections asserting that the rezoning of the appellees' property by the County Commissioners did not constitute a taking and that, therefore, the appellees failed to state a cause of action. The lower court dismissed the preliminary objections. On appeal, we remanded the case
[ 37 Pa. Commw. Page 611]
with directions to the lower court to receive evidence so that it could make a determination as to whether or not the claims of the appellees constituted a de facto taking. Reilly v. Department of Environmental Resources, 21 Pa. Commonwealth Ct. 611, 346 A.2d 918 (1975). After receiving evidence, the lower court again dismissed the appellants' preliminary objections and this appeal followed.
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 ...