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05/14/97 STABLER DEVELOPMENT COMPANY AND EASTERN

May 14, 1997

STABLER DEVELOPMENT COMPANY AND EASTERN INDUSTRIES, INC., APPELLANTS
v.
BOARD OF SUPERVISORS OF LOWER MT. BETHEL TOWNSHIP, PENNSYLVANIA



Appealed From No. 1993-CM-2830. Common Pleas Court of the County of Northampton. Judge MORAN.

Before: Honorable Dan Pellegrini, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Samuel L. Rodgers, Senior Judge. Opinion BY Judge Friedman

The opinion of the court was delivered by: Friedman

OPINION BY JUDGE FRIEDMAN

FILED: May 14, 1997

Stabler Development Company (Stabler) and Eastern Industries, Inc. (Eastern) appeal from an order of the Court of Common Pleas of Northampton County (trial court) which: (1) affirmed the decision of the Lower Mount Bethel Township (Township) Board of Supervisors (Board) denying and dismissing their challenge to the validity of the Township Zoning Ordinance (Ordinance) and their request for a curative amendment; *fn1 and (2) denied their petition for the appointment of a board of viewers filed under section 502(e) of the Eminent Domain Code. *fn2

In 1983, Stabler acquired a large tract of land from Alpha Portland Industries (Alpha). The property is located in the Township and is divided into two smaller tracts by Route 611. For decades, the 800 acres which lie on the eastern side of Route 611 have been used for sand and gravel quarrying operations. In the 1960's, Alpha conducted studies to determine whether the 28 acres on the western side of Route 611 were suitable for that purpose. The Township's 1971 Comprehensive Plan noted that Alpha planned to quarry sand and gravel from the 28-acre tract in about 15 years, after the 800-acre portion has been exhausted. However, the 28 acres have never been used for quarrying operations.

Under the Township's Ordinance, enacted in 1972, the 800 acres are located in an "Industrial" zoning district, where quarrying activities are permitted, and the 28 acres are located in a "Low Density Residential" zoning district, where quarrying and surface mining activities are neither permitted uses nor allowed by special exception.

In 1980, Alpha obtained mining permits from the Department of Environmental Resources (DER) authorizing the extraction of rock, stone, sand and gravel by surface mining methods on the western 28 acres, which DER viewed as an integral part of the total acreage.

When Stabler acquired the property from Alpha in 1983, Stabler assigned the mining permits to Eastern, its subsidiary, as part of a lease agreement. In 1984, Eastern commenced surface mining on the 28 acres contending that mining was permitted on the property as a prior non-conforming use. The Township filed a motion with the trial court to enjoin Eastern's mining activities on the 28 acres; however, the trial court denied the motion.

On appeal from the trial court's decision, we held that, because the 800-acre and 28-acre tracts were non-contiguous, Eastern could not establish quarrying as a prior non-conforming use on the 28-acre tract based on the quarrying activities on the 800-acre tract. Thus, we reversed the trial court's decision and enjoined Eastern from mining the 28 acres. Lower Mount Bethel Township v. Stabler Development Co., 97 Pa. Commw. 195, 509 A.2d 1332 (Pa. Commw. 1986), appeal denied, 516 Pa. 620, 531 A.2d 1121 (1987).

On February 8, 1993, Stabler and Eastern renewed their efforts to quarry the 28 acres by challenging the validity of the Township's Ordinance and by requesting that the Township's Board adopt a proposed curative amendment. Stabler and Eastern contended that the Ordinance effectuates an unconstitutional "taking" or condemnation of their mineral estate in the 28 acres; thus, the Township should either adopt the proposed curative amendment or pay just compensation for the mineral estate.

The Board held hearings on the matter and, on March 1, 1994, denied and dismissed the challenge. In reaching its result, the Board concluded that, because sand and gravel are extremely common in the community and the world, they do not constitute a separate interest in land for zoning purposes. (Board's Conclusions of Law, Nos. 1-5, 8.) Stabler and Eastern appealed the Board's decision to the trial court.

In addition, on April 2, 1994, Stabler and Eastern filed with the trial court a petition for the appointment of a board of viewers. In their petition, Stabler and Eastern alleged that the Township's enforcement of its Ordinance constitutes a de facto condemnation of their mineral estate in the 28-acre tract, and that they are entitled to just compensation. On November 9, 1995, the trial court consolidated the land use appeal and the petition for the appointment of a board of viewers for argument.

The trial court noted that various Pennsylvania courts have recognized separate mineral estates in coal, limestone, flint clay, iron ore, a certain type of sand which possesses unique characteristics and value, and stone and rock. However, because only the coal cases involved land use regulation, the trial court concluded that, except for coal, Pennsylvania does not recognize a separate mineral estate in the context of land use regulation. The trial court also stated that, even if it were willing to recognize a separate mineral estate for other materials, it would not do so for ubiquitous sand and ...


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