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 General Services, No. 5482 of 1979.
Thomas L. Kennedy, of Kennedy, Carlyon & Conahan, for appellants.
H. Warren Ragot, Assistant Attorney General, with him, Anthony P. Krzywicki, Chief Counsel, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle and Craig and MacPhail. Opinion by Judge Blatt. This decision was reached prior to the death of President Judge Bowman. Judge DiSalle did not participate in the decision in this case.
[ 49 Pa. Commw. Page 375]
Timothy J. and J. Emmett Reilly (appellants) have appealed from an order of the Court of Common Pleas of Luzerne County denying a request to amend their petition for the appointment of a board of view. The appellants allege a de facto taking by the Department of Environmental Resources (DER) and the General State Authority (appellees).
In a previous appeal involving these parties, Reilly v. Department of Environmental Resources, 37 Pa. Commonwealth Ct. 608, 609-11, 391 A.2d 56, 57 (1978) (Reilly II), we set out the relevant facts:
The appell[ant]s 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 appell[ant]s' land was zoned Conservation or C-1 which essentially
[ 49 Pa. Commw. Page 376]
permitted uses which would not be discordant with the rural character of the area. Beginning in 1962, 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 appell[ant]s, 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 appell[ant]s' 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 appell[ant]s' property back to C-1 on November 15, 1967.
In June 1973, the appell[ant]s filed a petition for the appointment of a board of view pursuant to Section 502(e) of the Eminent Domain Code, [Act of June 22, 1964, P.L. 84, Special Sess., as amended,] 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
[ 49 Pa. Commw. Page 377]
filed preliminary objections asserting that the rezoning of the appell[ant]s' property by the County Commissioners did not constitute a taking and that, therefore, the appell[ant]s failed to state a cause of action. The lower court dismissed the preliminary objections. On appeal, we remanded the case 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 appell[ant]s constituted a de facto taking. Reilly v. Department of Environmental Resources, 21 Pa. Commonwealth Ct. 611, 346 A.2d 918 ...