Opinion
2021-001-L
10-20-2022
PD INN, LLC & BLACK GRANITE VILLAGE, LP v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION
DEP, General Law Division: Attention: Maria Tolentino For the Commonwealth of PA, DEP: William H. Gelles, Esquire For Appellants: Michael S. Gill, Esquire
DEP, General Law Division: Attention: Maria Tolentino
For the Commonwealth of PA, DEP: William H. Gelles, Esquire
For Appellants: Michael S. Gill, Esquire
OPINION AND ORDER ON MOTION TO DISMISS
BERNARD A. LABUSKES, JR., JUDGE
Synopsis
The Board denies the Department's inadequately supported motion to dismiss this appeal for lack of jurisdiction.
OPINION
This appeal was filed on January 7, 2021 by PD Inn, LLC and Black Granite Village, LP (the "Appellants") using the Board's Notice of Appeal form. In the part of the form that asks the Appellants to describe the action of the Department of Environmental Protection (the "Department") that they are appealing, the Appellants wrote:
Upon information and belief, the Department prohibited the Township of Warwick from issuing to Appellant PD Inn, LLC and Appellant Black Granite Village, LP Certificates of Occupancy for certain properties located within the jurisdictional limits of the Township. Pursuant to the Township Zoning Officer, "[t]he Township has not been released by the PADEP to issue final certificates of occupancy."
In response to the form's requirement that the Appellants attach written notification of the Department's action if they received such notice, the Appellants attached two letters from Warwick Township's zoning officer, one to each Appellant, which read as follows:
I am writing in response to your application for a Zoning Certificate of Occupancy for the above referenced property. Having reviewed your application and communicated with the Pennsylvania Department of Environmental Protection (PADEP). [sic] The Township has not been released by the PADEP to issue the final certificates of occupancy; [sic] Therefore, your application has been denied and we are unable to issue the Zoning/Building Certificate of Occupancy at this time.
The Department filed a motion to dismiss this appeal, contending that the Board lacks jurisdiction to review the Township's letters. The Department correctly argues that we do not have jurisdiction to review a municipality's denial of occupancy permits. However, the Appellants in their response in opposition to the motion state that they are not attempting to appeal from the denial of occupancy permits. Rather, they are appealing from an apparent communication from someone at the Department apparently saying that, due to allegedly unresolved sewage planning concerns, the Township is prohibited from issuing any permits. The question, then, is whether this so-called communication constitutes an appealable action.
The problem with the Department's motion is that we have no record to support a decision other than one vague letter from a Township official quoted above. We do not know exactly what was communicated, by whom to whom, or when it was communicated. The Department says it "may have offered its legal interpretation to the Township" regarding sewer planning, but it does not provide us with any support for that speculation. The Department goes on to tell us what that interpretation might have been, but again, the content of the interpretation at this juncture is without any record support. The context and background provided by the Department regarding the Township's sewage facilities struggles might have been helpful in some setting other than the review of a motion to dismiss, but they are not helpful here without more information regarding the communication itself. We have nothing of record to go on in assessing the appealability of the mystery communication. The Department in a footnote to its memorandum of law says this appeal is also untimely, but that again cannot be determined without any record support regarding the Departmental communication at issue. We evaluate motions to dismiss in the light most favorable to the nonmoving party and will only grant a motion where the moving party is entitled to judgment as a matter of law. Lawson v. DEP, 2018 EHB 513, 514. The Department clearly has not met that standard here.
This appeal has essentially lain dormant now for almost two years. The parties have asked for and received numerous extensions due to what we are told are settlement discussions in some related litigation. Unfortunately, that settlement has not come to pass and it is time to move this appeal forward. The Board's staff will be in touch with the parties to schedule a hearing on the merits. In the meantime, we issue the Order that follows.
ORDER
AND NOW, this 20th day of October, 2022, it is hereby ordered that the Department's motion to dismiss is denied.