Township of Robinson v. DEP (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Township of Robinson, Petitioner v. Department of Environmental Protection, Respondent BEFORE: : : : : : : : : No. 451 C.D. 2007 Argued: May 6, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: July 3, 2008 The Township of Robinson (Township) petitions for review of the orders of the Environmental Hearing Board (Board) which granted Coventry Park LLC s (Coventry Park) motion to dismiss the Township s GP-7 Minor Road Crossing Permit appeal and the Pennsylvania State Programmatic General Permit (SPGP-2) appeal.1 Coventry Park proposed to construct a sixty-six lot subdivision in the Township. As part of the development Coventry Park sought to reclaim abandoned mines. In order to reclaim the mines Coventry Park sought a GFCC 1 The Board further ordered that the issues in the Government Financed Construction Contract (GFCC) appeal were limited such that any and all allegations therein which sought to challenge the GP-7 and/or the SPGP-2 Permits were dismissed and the issues in the GFCC appeal were limited to the GFCC action only. The parties have stipulated that the GFCC action has been settled. The Board dismissed the action pursuant to a stipulation of settlement on March 22, 2007. As a result, the GFCC action is not before this Court. from the Department of Environmental Protection (DEP). In order to obtain a GFCC Coventry Park was required to obtain a GP-7 Minor Road Crossing Permit from DEP and an authorization from the United States Department of the Army, Army Corps of Engineers (Army) pursuant to the Pennsylvania SPGP-2.2 On July 11, 2005, DEP issued a GP-7 Minor Road Crossing Permit to Coventry Park. On July 28, 2005, the Army issued its SPGP-2 authorization to Coventry Park. The Township did not receive notice of the issuance of the permits at that time.3 On November 3, 2006, DEP issued a GFCC to Coventry Park.4 2 Section 404(e) of the Clean Water Act, 33 U.S.C. §1344, allows for the issuance of General Permits on a statewide basis, which operate in conjunction with a State regulatory program that protects the aquatic environment in a manner equivalent to the Army regulation program, provided that the activities permitted under each category of general permits are similar in nature and result in no more than minimum individual or cumulative effects on the aquatic environment. On or about July 1, 2001, the Secretary of the Army issued the SPGP-2 to the Commonwealth of Pennsylvania. 3 In a letter dated July 28, 2005, Chief of the Regulatory Branch of the Department of the Army, Pittsburgh District Corps of Engineers, informed Coventry Park that its project qualified for federal authorization by PA SPGP-2. The letter stated that a conservation easement as stream mitigation would be placed on 1,210 feet of an unnamed tributary to Moon Run because the development would affect 500 feet of the tributary. Also, because phase II of the project would affect a wetlands area, proposed mitigation was the creation of 0.11 acres of palustrine scrub/shrub wetlands. 4 In proceedings separate from, but related to, the present matter, Coventry Park filed an application for subdivision and land use approval with the Township to develop its property. On December 27, 2004, Coventry Park filed an application for a variance to relocate a stream. The Township Zoning Hearing Board (ZHB) found that Coventry Park was required to obtain a variance for its proposed subdivision. The ZHB concluded that Coventry Park s project violated the Township Zoning Ordinance which prohibited the disturbance of land within fifty feet of a perennial stream or intermittent stream. On July 11, 2005, the Township s Board of Commissioners denied Coventry Park s application for subdivision approval based upon the failure to obtain a variance. Coventry Park appealed both decisions to the Court of Common Pleas of Allegheny County (common pleas court) which affirmed on the basis that the stream was neither intermittent nor perennial but ephemeral. Coventry Park appealed to this Court which vacated the order of the common pleas court and remanded to the common pleas court for (Footnote continued on next page ¦) 2 On August 28, 2006, Coventry Park submitted a subdivision plan to the Township. On September 11, 2006, Coventry Park sent a letter to the Township s counsel and requested that its application for a subdivision be placed on the agenda for the meeting of the Board of Commissioners scheduled for September 11, 2006. The letter included a copy of the GP-7 Permit and the SPGP2 Permit. The Township s counsel did not receive this letter until after the conclusion of the meeting of the Board of Commissioners. At the meeting, the Board of Commissioners denied the subdivision. Coventry Park appealed the denial to the common pleas court which affirmed. This Court affirmed as well. Coventry Park LLC v. Robinson Townhip Board of Commissioners, Nos. 673 C.D. 2007 and 674 C.D. 2007, Filed July 3, 2008. Upon receipt of the September 11, 2006, letter, the Township sought documentation regarding the issuance of the permits. On October 14, 2006, The Township s counsel requested of the Army a complete copy of the permit file (including any maps) for Coventry Park LLC. . . . Fax Cover Sheet from Bob Garvin, October 14, 2006, at 1; R.R. at 441a. That same day, the Township s counsel requested of DEP a complete photocopy of the permit file (including any maps) for Coventry Park LLC. . . . Fax Cover Sheet from Bob Garvin, October (continued ¦) further remand to the ZHB for the ZHB to determine whether the stream was either perennial or intermittent, and, if so, whether Coventry Park was entitled to a variance. On remand, the ZHB determined that the stream was intermittent and that Coventry Park was not entitled to a variance. The common pleas court affirmed. This Court affirmed as well. Coventry Park LLC v. Robinson Townhip Board of Commissioners, Nos. 673 C.D. 2007 and 674 C.D. 2007, Filed July 3, 2008. 3 14, 2006, at 1; R.R. at 443a. The Township obtained documents supporting the SPGP-2 authorization on October 18, 2006. The Township obtained documents supporting the GP-7 Permit on October 19, 2006. On November 16, 2006, the Township appealed the issuance of the SPGP-2 Permit. The Township alleged that it did not receive notice of the issuance of the permit until October 17, 2006. The Township objected on the basis that there was no evidence of a required conservation easement to prohibit moving, filling, cultivating or timber harvesting in the easement area which the Township alleged was grossly violated. The application did not provide the width of the 1,200 foot corridor preservation. Further, there was no evidence of receipt of the required notice by the Township, and there was no evidence of submission or completion of a General Information Form. Certain information that was required for the General Information Form could affect the project. Also, the permit referenced two proposed roads, the approvals for which were denied by the Township Board of Commissioners. On November 16, 2006, the Township appealed the issuance of the GP-7 Minor Road Crossing Permit to the Board. In this appeal, the Township asserted that it did not receive notice of the issuance of the permit until a copy of the DEP file was obtained by the Township on October 19, 2006. The Township objected on the basis that the notification to the Township did not address stream impacts, only wetlands impacts. The Township also raised the same issues with regard to the notice, the General Information Form, and the proposed roads as it did in the SPGP-2 appeal. 4 On or about December 11, 2006, Coventry Park moved to dismiss the SPGP-2 and GP-7 appeals on the basis that they were untimely filed. The SPGP-2 Permit was issued on July 28, 2005, and the GP-7 Permit was issued on July 11, 2005. The appeals were not filed until November 16, 2006. In the motion, Coventry Park alleged that the Township s counsel received copies of the permits on September 11, 2006. On February 12, 2007, the Board granted the motions to dismiss: The Township has admitted that it did not file the GP-7 or the SPGP-2 Appeals on time and there is no doubt we have no jurisdiction over these appeals because they are untimely. . . . The Township s argument, that despite its actual notice of the issuance of the permits, its 30-day clock did not start to run until it inspected the DEP s file in October 2006 and saw the technical documentation that was submitted by Coventry Park which formed the basis for the reasons for the appeal is completely specious and certainly not supported by any authority whatsoever. Its related or subsidiary argument that it was not aware of the need for an appeal until the Township was in receipt of the technical documentation of these permits is similarly unavailing. . . . Our rule is clear that an appeal must be filed within 30 days of actual notice and the parties are in agreement that the Township had actual notice of the GP-7 Permit and SPGP-2 Permit by no later than September 11, 2006. The appeals were filed on November 16, 2006 and they are untimely without question. In light of the untimely filing of the two appeals, the Township asks the Board to allow the appeals to proceed nunc pro tunc. . . . 5 The Township argues the untimely appeals were a result of unique and compelling circumstances creating a nonnegligent untimely filing. The Township does not elucidate what these unique and compelling circumstances are other than rehearsing its argument that it was unaware of the need for an appeal until it received the technical data regarding the permits in October 2006. Moreover, the Township does not allege that there was any fraud or breakdown in the Board s operation. Being unaware of the need for an appeal is simply not a compelling circumstance that gives rise to an appeal nunc pro tunc. . . . (Citations omitted). Environmental Hearing Board, Opinion and Order, February 12, 2007, at 6-7. The Township petitioned for review with this Court. Coventry Park intervened. The Township contends that the Board erred as a matter of law when it determined that September 11, 2006, was the appropriate date for commencement of the appeal period where the Township was not in position to ascertain whether it was aggrieved by the issuance of certain permits until October 18, 2006, for Permit SPGP-2 and October 19, 2006, for Permit GP-7 and, and that the Board erred as a matter of law when it did not grant the Township s request to appeal nunc pro tunc, pursuant to Environmental Hearing Board Rule of Practice and Procedure 1021.53(a) where the Township established unique and/or compelling circumstances that warranted the grant of the nunc pro tunc appeal.5 5 This Court s review of a Board order is limited to a determination of whether the Board s findings are supported by substantial evidence and whether constitutional violations or errors of law were committed. Global Eco-Logical Services, Inc. v. Department of Environmental Protection, 789 A.2d 789 (Pa. Cmwlth. 2001). 6 With respect to the commencement of the appeal period, the Township asserts that Section 4(c) of the Environmental Hearing Board Act6 provides that no action of DEP is final until a person adversely affected has an opportunity to appeal the action to the Board. Therefore, DEP s action was not final until the Township, a party adversely affected had an opportunity to appeal. The Board s regulation, 25 Pa.Code §1021.52(a), sets forth the time frame for appealing an action of DEP: Except as specifically provided in § 1021.53 (relating to amendments to appeal or complaint), jurisdiction of the Board will not attach to an appeal from an action of the Department unless the appeal is in writing and is filed with the Board in a timely manner, as follows, unless a different time is provided by statute: (1) The person to whom the action of the Department is directed or issued shall file its appeal with the Board within 30 days after it has received written notice of the action. (2) Any other person aggrieved by an action of the Department shall file its appeal with the Board within one of the following: (i) Thirty days after notice of the action if a notice of the action has been published in the Pennsylvania Bulletin. (ii) Thirty days after actual notice of the action if a notice of the action is not published in the Pennsylvania Bulletin. 6 Act of July 13, 1988, P.L. 530, 35 P.S. §7514(c). 7 The Township asserts that a person is aggrieved if he (a) has a substantial interest in the subject matter of the litigation; (b) the interest is direct; and (c) the interest is immediate and not a remote consequence. William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). The Township argues that it was unable to determine that it was adversely affected or aggrieved by the permits until after it received the underlying documentation. The Township states that once it received the files it discovered that certain requirements were placed upon Coventry Park and that there were certain deficiencies in the permits. The Township argues it did not have actual notice of any adverse effects until it received and reviewed the documentation. This Court does not agree. It is undisputed that the Board s action was not published in the Pennsylvania Bulletin and that the Township had notice of the two permits by, at the very latest, September 11, 2006. The regulation provides that an aggrieved party shall file its action within thirty days after it has actual notice. The regulation does not say that a party has thirty days to appeal after it determines it is aggrieved or say anything about reviewing supporting documentation of a DEP action. Indeed, the Township cannot point to any regulation, statute or case law to support its position that the thirty day appeal period did not commence until it had a chance to do whatever investigation was necessary to determine whether it wanted to appeal. The Board lacked jurisdiction over the appeals because they were not filed within the appeal period set forth in the regulation. Toro Development Company v. Department of Environmental Resources, 425 A.2d 1163 (Pa. Cmwlth. 1981). The Board did not err. 8 Next, the Township contends that even if its appeal was untimely, the Board erred when it failed to grant the Township s request to appeal nunc pro tunc. The Board s regulation, 25 Pa.Code §1021.53a, provides The Board upon written request and for good cause shown may grant leave for the filing of an appeal nunc pro tunc; the standard applicable to what constitutes good cause shall be the common law standards applicable in analogous cases in courts of common pleas in this Commonwealth. A nunc pro tunc appeal of an administrative action will be allowed only where there is a showing of fraud, breakdown in the administrative process or unique and compelling factual circumstances establishing a non-negligent failure to file a timely appeal. Falcon Oil Company, Inc. v. Department of Environmental Resources, 609 A.2d 876 (Pa. Cmwlth. 1992). The Township does not allege any fraud or breakdown in the administrative process. The Township asserts that it established a non-negligent reason for filing its appeal more than thirty days after the issuance of the permits because it did not know it was adversely affected or aggrieved until it reviewed the documentation supporting the permits. Essentially, the Township makes the same argument as it did to support its position that the appeal was not untimely. Unfortunately for the Township, this Court was not persuaded by that argument and is unpersuaded by it in this context, too. Critically, the Township does not explain why it waited from the date it admittedly received notice of the permits, September 11, 2006, until October 14, 2006, to request the files supporting the permits. The Township waited over thirty days from the time it received notice to 9 investigate whether it should appeal. The Township has failed to allege and establish any unique and compelling non-negligent circumstances forced it to delay filing the appeals. Accordingly, this Court affirms. ____________________________ BERNARD L. McGINLEY, Judge 10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Township of Robinson, Petitioner v. Department of Environmental Protection, Respondent : : : : : : : : No. 451 C.D. 2007 ORDER AND NOW, this 3rd day of July, 2008, the order of the Environmental Hearing Board in the above-captioned matter is affirmed. ____________________________ BERNARD L. McGINLEY, Judge

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