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WILLOWBROOK MINING COMPANY (10/07/85)

decided: October 7, 1985.

WILLOWBROOK MINING COMPANY, PETITIONER V COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT


Appeal from the Order of the Environmental Hearing Board of Pennsylvania in case of Willowbrook Mining Company v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket No. 82-137-G.

COUNSEL

Stephen C. Braverman, with him, Charles E. Gutshall, Dilworth, Paxson, Kalish & Kauffman, for petitioner.

Alan S. Miller, Assistant Counsel, for respondent.

Judges Craig and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 92 Pa. Commw. Page 164]

Willowbrook Mining Company appeals a decision of the Pennsylvania Environmental Hearing Board, which granted summary judgment in favor of the Department of Environmental Resources and dismissed Willowbrook's appeal from DER's denial of a variance request. The issue for our resolution is whether the EHB properly determined that the application of the statutory prohibition against surface mining within three hundred feet of an occupied dwelling, contained in section 4.5 of the Act of May 31, 1945, P.L. 1198, added by section 8 of the Act of October 10, 1980, P.L. 835, 52 P.S. § 1396.4e, did not result in an unconstitutional taking of Willowbrook's property.

The facts, which are not in dispute, indicate that Willowbrook acquired the right to 700 acres of coal

[ 92 Pa. Commw. Page 165]

    on March 14, 1970, and acquired the surface estate in 71 of those acres, including the area in dispute here, before the federal Surface Mining Control and Reclamation Act of 1977 took effect on August 3, 1977. Willowbrook has been conducting surface mining operations on the property pursuant to permits which DER issued in 1978.

In March of 1982, Willowbrook requested a variance from the statutory restriction against mining in a 300-foot buffer zone around an occupied dwelling without the homeowner's consent. DER denied that request on May 5, 1982, and in July, 1984, the EHB dismissed Willowbrook's appeal from that denial, granting summary judgment in favor of DER. The EHB declined to resolve which of several regulations was controlling, instead hinging the denial on its conclusion that the prohibition did not result in a taking of Willowbrook's property.

When reviewing EHB decisions, the court must determine whether the record contains substantial evidence to support the board's findings of fact, and whether the board committed errors of law or constitutional violations. Einsig v. Pennsylvania Mines Corporation, 69 Pa. Commonwealth Ct. 351, 452 A.2d 558 (1982).

The parties directed much of the argument in their briefs toward attempting to convince the court which of the competing regulations should apply to the current dispute. A review of the statutory and regulatory framework will put those contentions in perspective.

Section 4.5(h) of the Pennsylvania Surface Mining Conservation and Reclamation Act, 52 P.S. § 1396.4e(h) provides:

Subject to valid existing rights as they are defined under § 522 of the Surface Mining Control

[ 92 Pa. Commw. Page 166]

    and Reclamation Act of 1977, 30 U.S.C. § 1201 et seq., no surface mining operations except those which existed on August 3, 1977 shall be permitted: . . . (5) within three hundred feet from any occupied dwelling, unless waived by the owner thereof. . . .

On the date of the enactment of that section, October 10, 1980, the referenced section of the federal surface mining act (SMCRA) similarly provided:

After the enactment of this act and subject to valid existing rights no surface coal mining operations except those which existed on the date of enactment of this Act shall be permitted . . . (5) Within three hundred feet from any ...


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