Citation Numbers： 719 A.2d 19
Judges： Pellegrini and Kelley (P.), Jj., and Rodgers, Senior Judge
Filed Date： 10/1/1998
Status： Precedential
Modified Date： 10/26/2024
Before this Court is a motion for summary judgment filed by the Commonwealth of Pennsylvania, Department of Environmental Protection (DER), the Environmental Quality Board (EQB) and Arthur A. Davis, Secretary of the Department of Environmental Resources (collectively, the Commonwealth) in response to a petition for review filed by Machipongo Land and Coal Company, Inc., the Victor E. Erickson Trust and Joseph Naughton (collectively, Coal Owners) challenging a regulation designating portions of their land unsuitable for surface mining.
On May 26, 1989, the Commonwealth received from the Brisbin Recreation Board and the Locust Grove Sportsmen Club “A Petition To Declare Areas Unsuitable For Mining” in which they requested that the entire 2.86 square mile Goss Run Watershed (Watershed) be protected from coal mining so as to protect the quality of the water of the Goss Run stream and the Brisbin Dam and Recreational Park.
After public hearings were held, the DER conducted a detailed study of the proposed designated area as required by Section 4.5(g) of the Pennsylvania Surface Mining Conservation and Reclamation Act (PaSMCRA), Act of May 31, 1945, P.L. 1198, as amended, 52 P.S. § 1396.4e(g). Essentially, the results of the study indicated that surface coal mining of the Watershed upstream of the Brisbin Dam had significant potential to disrupt the hydrologic balance causing decreases in the net alkalinity of discharges from abandoned Lower Freeport underground mines and destroying the habitat for wild trout populations. It also had a high potential to cause increases in dissolved solids and metals concentrations in Goss Run that would adversely affect the use of the stream as an auxiliary water supply. The DER recommended that the EQB approve a proposed regulation designating the surface mineable coals located within the Watershed upstream of the Bris-bin Dam as unsuitable for surface mining of coal and submitted that recommendation to the General Assembly. The EQB approved the proposed regulation, and after a period of public comment, the General Assembly also approved the notice of proposed rulemaking and adopted a final regulation designating a portion of the Watershed unsuitable for mining (UFM) as set forth at 25 Pa.Code § 86.130(h)(14).
After much litigation as to the proper forum to hear this ease, our Supreme Court remanded it to us for resolution.
Not denying at this time that the regulation allowing for the UFM designation is valid, Coal Owners argue that a taking has occurred because they have been deprived of their right to surface mine their coal in the designated area and, therefore, have been denied all economical use of that land. They contend this is so because Pennsylvania recognizes coal as a separate estate in land and whether they can still utilize the surface rights of their land in the designated area is irrelevant.
I.
Both the Fifth Amendment to the United States Constitution and Article 1, Section 10 of the Pennsylvania Constitution expressly provide that private property may not be taken under the powers of eminent domain for public use without payment of just compensation.
The test for determining whether a regulation amounts to a taking and requires the payment of just compensation has evolved over the years. The test, which was first established in Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385 (1894), has come to be known as the “traditional” takings analysis. In Lawton, the United States Supreme Court set forth the following factors to be considered when determining whether a regulatory taking had occurred:
The Supreme Court continued to utilize the traditional test in Pennsylvania Coal v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), one of the first cases dealing with coal estates and regulatory takings. In that case, a residence deeded to Mahon stood on
The Court performed a balancing test stating that the extent of the public interest shown' by the regulation was limited because it ordinarily did not apply to land when the surface was owned by the owner of the coal. It also determined that the source of damage to the house was not a public nuisance even if similar damage was inflicted on others in different places because it was neither common nor public. Stating that “[ijor practical purposes, the right to coal consists in the right to mine it,” Id., 260 U.S. at 414, 43 S.Ct. 158, the Court determined that if anyone was so shortsighted as to only acquire surface rights without the right of support, the owner of the coal rights would have to be compensated because all of its coal would be taken. The Court ultimately held that the regulation was a taking and concluded, “[t]o make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it.” Id.
Many years later, in Penn Central Transportation Company v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), reh’d denied, 439 U.S. 883, 99 S.Ct. 226, 58 L.Ed.2d 198 (1978), the Supreme Court again had the opportunity to apply the balancing test when addressing New York City’s Landmarks Preservation Law as it applied to Grand Central Terminal. Penn Central, which owned the Terminal, wanted to construct an additional 50 stories on top of the Terminal but was denied the appropriate permits due to the preservation regulation. It appealed arguing that the regulation had taken its property for public use without just compensation in violation of the Fifth Amendment because it had taken its right to air space. Utilizing the balancing test, the Court held that the regulation did not amount to a taking because the preservation of historical buildings was related to the promotion of the general welfare and the Terminal was still economically viable — i.e., it could still be used for its intended purpose without any loss of profit from its continued use. It also noted that the regulation did not interfere with Penn Central’s investment-backed expectations because development rights that had been denied to Penn Central for the Terminal had been made transferable to numerous other sites in the vicinity of the Terminal.
What was notable about the Penn Central case was that it expanded the third prong of the balancing test to include a determination of whether there was some economic value left to the landowner’s property, not just a determination of whether the landowner was “unduly oppressed.” The test in that form was utilized by the Supreme Court in Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987), when it again had the opportunity to address whether a regulation dealing with coal rights constituted a taking. Keystone involved Pennsylvania’s Bituminous Mine Subsidence and Land Conservation Act, 52 Pa.C.S. § 1406.6, an Act that strictly regulated coal mining in areas that were subject to subsidence and required that 50% of the coal under structures be left in place to prevent subsidence from occurring. The Coal Association argued that it was being denied the right to mine 27 million tons of coal, and that the Court should rely on its holding in Ma-hon to find that the Act constituted a taking
Because our test for regulatory taking requires us to compare the value that has been taken from the property with the value that remains in the property, one of the critical questions in determining how to define the unit of property “whose value is to furnish the denominator of the fraction.” (Emphasis added.)
Id., 480 U.S. at 497, 107 S.Ct. 1232.
Although the Court apparently looked at the contiguous land owned by the Coal Association as well as the regulated land, it did not explain why the total land owned was used as the denominator of the fraction. It then concluded that there was no regulatory taking because the Coal Association had not lost all viable economical value use of its land as it had never claimed their mining operations had been unprofitable since the Act was passed or that mining in any specific location affected by the 50% rule had been unprofitable. Additionally, it still possessed mineral rights in the regulated area that could be mined profitably and there had been no undue interference with its investment-backed expectations. Finally, the Court held that the Act required coal to be left in place for legitimate public safety reasons.
After Keystone, the traditional test had evolved to require a determination of whether the landowner had any economically viable use of his land remaining.
The last and most recent case decided by the Supreme Court in the area of regulatory takings is Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). In Lucas, the Court was faced with deciding whether a regulation that took 100% of the value of landowner’s property constituted a taking. Landowner paid $975,000 for two residential lots in South Carolina on which he planned to build single-family homes. After the purchase of the property, the Beachfront Management Act was enacted to prevent erosion and had the effect of preventing Lucas from building any structures on his properties and rendering those properties worthless. Lucas filed suit
Not discussing the investment-backed expectation factor but recognizing that there was a per se taking if the owner of the property was required to sacrifice all economical beneficial use of his land,
After Lucas, then, the test to determine whether there is a regulatory taking is based on the following factors:
• whether the public interest requires regulatory interference with the property right;
• whether the regulation is reasonably related to that goal;
• whether the amount of property taken deprives an owner of all economical viable uses of the property, measured by what was taken (the numerator) against what was left (the denominator); and
• whether property owner’s actions or proposed actions would cause a nuisance.14
II.
In this case, Coal Owners aver that just as in Lucas, they, too, have lost all viable economical use of their land because coal is a separate estate in land and they have no access to mine any of their coal in the designated area. The Commonwealth, however, argues that the coal estate is part of the entire parcel of land owned by Coal Owners, including the surface rights and the property owned adjacent to the designated area, and that entire parcel is the proper “denominator” to be used to decide if all economical use is gone.
The difficulty in determining the land to be used as the denominator in deciding if there is a deprivation of all economical beneficial use of land was recognized by the Court in Lucas:
Regrettably, the rhetorical force of our “deprivation of all economically feasible use” rule is greater than its precision, since the rule does not make clear the “property interest” against which the loss of value is to be measured. When, for example, a regulation requires a developer to leave 90% of a rural tract in its natural state, it is unclear whether we would analyze the situation as one in which the owner has been deprived of all economically beneficial use of the burdened portion of the tract, or as one in which the owner has suffered a mere diminution in value of the tract as a whole.
Id., 505 U.S. at 1016, 112 S.Ct. 2886.
In attempting to resolve this difficulty, the Courts have addressed the problem of deciding how the denominator is determined in a regulatory takings case, but they have never agreed on the appropriate method for determining that portion of the fraction and have provided little in the way of guidance. Essentially, though, they have all utilized one of the following three approaches: 1) the contiguous land under a common owner approach; 2) the property interest as defined by the regulation; and 3) the multi-factor analysis.
While this is an easy approach to take, there are impediments to its use. First, there is a facial unfairness in this approach. For example, consider the following: there are two contiguous properties, parcel A consisting of 10 acres and adjacent parcel B consisting of 100 acres, both owned by different individuals. The Commonwealth enacts legislation barring development of a 20-acre area for a valid state purpose but depriving landowner(s) of any economically beneficial use. The 20 acres that are protected by statute turn out to encompass all 10 acres of parcel A and only 10 acres of Parcel B’s 100 acres. Under this approach, the landowner of parcel A would be compensated for a total taking of parcel A while the landowner of parcel B would not be compensated at all because his percentage of total acreage owned far outweighs the regulated land, resulting in a de minimis taking of only one-tenth of his property.
Another problem this approach presents is how to treat contiguous property previously owned by the landowner that was either developed or “sold off.” This problem was illustrated in Deltona Corporation v. United States, 228 Ct.Cl. 476, 657 F.2d 1184 (Ct.Cl. 1981), where Deltona purchased a 10,000 acre parcel on the Florida Gulf coast with the intention of developing 12,000 single-family homes. It divided the land into five parcels, obtained the requisite permits, and sold the individual tracts in one area. However, the Army Corps of Engineers subsequently denied requests to develop two other parcels in order to preserve wetlands. Arguing on appeal that because they could not develop the property there had been a taking of that property, the Court of Federal Claims determined that the relevant parcel for determining the denominator was the entire 10,000 acre tract originally purchased by Deltona, even though it had previously sold a portion of that land. Using land once owned by the landowner to arrive at a denominator ignores that the property no longer belongs to the landowner to do with as he pleases.
The second approach, which the Coal Owners urge us to adopt — defining the property interest by the regulation — is also a bright line test that only uses the regulated land as the denominator. Just as with the first approach, the benefit of this test is that it is one easily applied by the courts because they need only determine the actual land within the regulated area. This approach, however, has the downside that almost any regulation can result in a take, e.g., a set-back requirement in a zoning ordinance could result in a take because it does not balance the public’s interest with private property rights.
The third approach — the multi-faceted approach — considers various factors in determining the denominator. They include whether the landowner had investment backed expectations;
Of these three approaches, we believe the property interest by regulation approach is the best one to determine the denominator, but with some important modifications to take into consideration the need for governmental regulation in the public interest. Although this approach tilts in the landowner’s favor, “historically the Takings Clause was designed to protect private citizens from governmental interference with property rights. Therefore, it makes sense for courts, at least initially, to tip the scales slightly in the plaintiff’s favor.”
• whether the regulated land had value prior to the regulation;
• whether the regulated land has a separate use from the non-regulated contiguous pareel(s) — i.e., whether it may be profitably used if it is the only parcel; and
• if the regulated land has value separate from the contiguous land, whether all of its economic benefit is gone.
If the regulated land had no value prior to the regulation because it had no viable use, it could not serve as the denominator and there would be no taking because the regulation would not have deprived the landowner of its use. However, if the regulated land had an economically viable use separate and apart from any other contiguous land that was owned and became valueless after the regulation, it would become the denominator in the fraction and there would be a taking. Under our test, if the Commonwealth could show that Coal Owners had other access to mine their coal, then the land would not be valueless and there would be no taking. This approach is best because it fosters predictability, focuses on the effect of the governmental regulation on the property and not on the circumstances of the property owner, and results in fairness because it treats all property owners the same.
III.
Because we have determined that only the regulated land is to be considered in determining the denominator, we must next determine how to treat Coal Owners’ coal estate in the UFM designated area. The Commonwealth suggests we should calculate the denominator based on finding Coal Owners’ rights in the coal estate are just part of the bundle of rights they own in land. If we were to do so, there would be no taking because Coal Owners do not dispute that they still have surface rights that can be used and they would not be deprived of all economical beneficial use of their land. If, however, we were to agree with Coal Owners that it did not matter what other estates in land they owned because the coal estate was treated as a separate estate, then there would be a taking because they would be deprived of their right to mine that land.
In most other states, coal estates are not treated as separate estates from surface estates. However, Pennsylvania is unique from other states in that it has long recognized three separate estates in land— surface, coal/mineral and the right to support. Commonwealth v. Fitzmartin, 376 Pa. 390; 102 A.2d 893 (1954); Stabler Development Company v. Board of Supervisors of Lower Mt. Bethel Township, 695 A.2d 882 (Pa.Cmwlth.1997); Millcreek Township v. N.E.A. Cross Company, 152 Pa.Cmwlth. 576, 620 A.2d 558, n. 8 (Pa.Cmwlth.1993); Gardner v. Commonwealth of Pennsylvania, Department of Environmental Resources, 145 Pa.Cmwlth. 345, 603 A.2d 279 (Pa.Cmwlth. 1992). All three estates may be owned separately, Fitzmartin, and taxed separately,
IV.
In this case, using the regulated land standard to determine whether there is a taking would result in the following fraction:
the interest in coal taken (numerator)
the regulated land (denominator)
If the result of the fraction is 1, then a taking has occurred; conversely, if the fraction is anything less than 1, no compensatory taking has occurred and we would grant the Commonwealth’s motion for summary judgment.
However, because there are several facts that are not before us, we are unable to calculate the value of the fraction. To make that calculation, it must be determined if the coal estate had value prior to the UFM designation, whether it had a separate use from the non-regulated contiguous land Coal Owners owned, and whether all of its economic benefit was gone as a result of the regulation. If, after that determination is made, the result of the fraction is less than 1, then a taking has not occurred. In this case, specific evidence would have to be adduced as to whether the coal can be extracted by subsurface mining; whether the land in the regulated area cannot be surface mined without using the contiguous parcel; and whether the grade of coal is insufficient in amount or quality to economically mine. With that evidence, the denominator can be fixed and we can then determine whether the regulation has resulted in an unconstitutional taking and either enjoin the regulation or find that the Commonwealth’s UFM designation is a permissible regulatory restriction on the use of the land.
ORDER
AND NOW, this 30th day of September, 1998, the motion for summary judgment filed by the Commonwealth of Pennsylvania, Department of Environmental Protect, the Environmental Quality Board and Arthur A. Davis, Secretary of the Department of Environmental Resources, in response to the petition for review filed by Machipongo Land and Coal Company, Inc., the Victor E. Erickson Trust and Joseph Naughton, is denied.
. More specifically, the petition alleged that surface mining within the Watershed would adversely affect the Goss Run stream water quality and the Brisbin Dam and Recreational park; would adversely affect a recreational stocked trout fishery maintained by the Pennsylvania Game Commission; and would adversely affect wildlife habitat in the Watershed reducing its values for hunters, hikers and others who used the Watershed because of its aesthetic woodlands.
. That section provides:
The surface mineable coal reserves within the Goss Run watershed upstream of the Brisbin Dam, including a small tract of land within the watershed of the West Tributary to Goss Run, a total of approximately 555 acres, are designated unsuitable for all types of surface mining operations.
The regulation was published as final in the Pennsylvania Bulletin on May 3, 1992. See 22 Pa. B. 2715.
. Coal Owners also requested that we order the Commonwealth to adopt regulations containing constitutional safeguards for affected landowners and to declare the regulation void; or order the Commonwealth to hold a hearing with constitutional guarantees to determine whether the regulation should be adopted.
. In response to Coal Owners' petition, the Commonwealth filed preliminary objections alleging, inter alia, that this Court lacked jurisdiction to hear the case. While holding we had jurisdiction, we granted the preliminary objections and transferred the matter to the Environmental Hearing Board (EHB) for disposition under the doctrine of primary jurisdiction because it had the expertise to rule on the validity of the surface mining taking claims. See Machipongo Land and Coal Co., Inc. v. Commonwealth, Department of Environmental Resources, 155 Pa.Cmwlth. 72, 624 A.2d 742 (Pa.Cmwlth.1993) (Machipongo I).
Both the Commonwealth and Coal Owners filed appeals with the Supreme Court arguing that the transfer of the case to the EHB was erroneous. Coal Owners argued that their taking claims should be addressed by the courts while the Commonwealth argued they should be addressed by the DER. By order dated October 11, 1994, the Supreme Court reversed our decision and referred the case to the Court of Common Pleas of Clearfield County for further proceedings under the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § § 1-101 - 1-903. See Machipongo Land and Coal Co., Inc. v. Commonwealth, Department of Environmental Resources, 538 Pa. 361, 648 A.2d 767 (1994) (Machipongo II). The Commonwealth filed an application for reargument alleging that this Court, rather than the trial court, had jurisdiction to hear this matter. The Supreme Court granted reargument and by order dated May 21, 1996, vacated its earlier decision. See Machipongo Land and Coal Co., Inc. v. Commonwealth, Department of Environmental Resources, 544 Pa. 271, 676 A.2d 199 (1996) (Machipongo III). It then remanded the case to this Court for further proceedings on the basis that the regulation upon which the Coal Owners were making their challenges was promulgated under the Commonwealth's police power rather than the Eminent Domain Code and did not fall within an enumerated exception to Section 761(a)(1) of the Judicial Code, 42 Pa.C.S. § 761(a)(1).
.Summary judgment is appropriate when there is no genuine issue of material fact and the movant clearly establishes its entitlement to judgment as a matter of law. Mason & Dixon Lines, Inc. v. Mognet, 166 Pa.Cmwlth. 1, 645 A.2d 1370 (Pa.Cmwlth.1994). When considering a motion for summary judgment, the court must examine the record in the light most favorable to the non-moving parly, accepting as true all well-pleaded facts and all inferences to be drawn therefrom. Id.
. The Fifth Amendment to the United States Constitution states: "nor shall private property be taken for public use, without just compensation.” Article 1, Section 10 of the Pennsylvania Constitution provides: "nor shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured.”
. The government’s police power arises from the Fourteenth Amendment to the United States Constitution and Article 1, Section 1 of the Pennsylvania Constitution.
. Lawton involved a regulation in New York that protected certain species of fish by prohibiting fishing in specific areas. Plaintiffs challenged the constitutionality of the regulation after their $15 fishing rods were taken and destroyed because they were used in violation of the regulation.
. See also Miller & Son Paving, Inc. v. Plumstead Township, 552 Pa. 652, 717 A.2d 483 (1998), where our Supreme Court recently utilized the test set forth in Lawton with the following minor modifications: 1) the interest of the general public, rather than a particular class of persons, must require governmental action; 2) the means must be necessary to effectuate that purpose; and 3) the means must not be unduly oppressive upon the property holder, considering the economic impact of the regulation, and the extent to which the government physically intrudes upon the property.
. The Court did not reach the issue of whether there had been a taking of the air space because even though the permits had been denied for the construction of an additional 50 stories, the Commission had not indicated that approval would be denied for a smaller structure that had not yet been sought.
. One year after Keystone was decided, this Court in McClimans v. Board of Supervisors of Shenango Township, 107 Pa.Cmwlth. 542, 529 A.2d 562 (Pa.Cmwlth.1987), had the opportunity to utilize the test set forth in Keystone to decide whether the inability to mine coal constituted a regulatory taking. In that case, McClimans leased to Amerikohl the right to remove coal on their property. Subsequently, the Township enacted an ordinance that stated surface mining was not a permitted use in the R-l zone in which the property was located. McClimans argued that if the coal on its land could not be mined, the ordinance constituted a taking. On appeal, we relied on Keystone and held that if the McCli-mans' coal could not be mined, the ordinance would constitute a taking. However, because it had not yet been determined whether there were alternative means to reach the coal other than through surface mining, the case was remanded for that determination.
Relying on footnote 4 in McClimans, the dissent contends that it stands for the proposition that the three separate estates in land are without significance in a taking analysis. However, footnote 4 of that opinion states:
While the significance of the distinction between the coal estate and the surface estate remains viable for land use regulation purposes the significance of the support estate seems to have been obliterated, at least for purposes of deciding taking issues under the federal constitution ... (Italics in the original; bold added.)
This statement is merely a comment on what the United States Supreme Court stated in Keystone. See footnote 26.
. The fraction for determining whether a taking has occurred has been expressed as follows:
[A] court must compare the loss of property use resulting from a regulation, x, to the sum of all usage rights inherent in a piece of property, y. If x/y equals 1, then a taking has occurred; if x/y is something less than 1, the property owner is entitled to nothing. If the relevant property interest, y, is defined narrowly enough, as, for example, only those rights that have been regulated away, then a taking will always have occurred ... On the other hand, if the relevant property interest is defined broadly enough, a regulatory taking will never occur.
Comment, Unearthing the Denominator in Regulatory Takings Claims, 61 U. Chi. L.Rev. 1535, 1536 (1994).
. "The principle that underlies this doctrine is that while most burdens consequent upon government action undertaken in the public interest must he borne by individual landowners as concomitants of the advantage of living and doing business in a civilized community, some are so substantial and unforeseeable and can so easily be identified and redistributed, that justice and fairness require that they be borne by the public as a whole.” Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 104 S.Ct. 2187, 81 L.Ed.2d 1 (1984).
. But see Kanner, Hunting the Snark, Not the Quark: Has the U.S. Supreme Court Been Competent in Its Effort to Formulate Coherent Regulatory Takings Law?, The Urban Lawyer, Vol. 30, No. 2, 307 (1998) (Supreme Court decisions in regulatory takings law are incoherent and cannot be rationalized).
. See Jentgen v. United States, 228 Ct.Cl. 527, 657 F.2d 1210 (Ct.C1.1981).
. See Florida Rock Industries, v. United States, 18 F.3d 1560 (Fed.Cir. 1994).
. See Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed.Cir.1994).
. See American Savings & Loan Association v. Marin County, 653 F.2d 364 (9th Cir.1981).
. See Ciampitti v. United States, 22 Cl.Ct. 310 (1991).
. Id.
. Lisker, Regulatory Takings and the Denominator Problem, 27 Rutgers L.J. 663, 720 (1996).
.This approach is suggested in Comment, Unearthing the Denominator in Regulatory Takings Claims, supra.
.See Barnard v. New York State Natural Gas
.In Keystone, the United States Supreme Court, commenting about how Pennsylvania law treated the support estate and tied it to either the surface or mineral rights, stated:
The Court of Appeals, which is more familiar with Pennsylvania law than we are, concluded that as a practical matter the support estate is always owned by either the owner of the surface or the owner of the minerals. It stated:
"The support estate consists of the right to remove the strata of coal and earth that undergird the surface or to leave those layers intact to support the surface and prevent subsidence. These two uses cannot co-exist and, depending upon the purposes of the owner of the support estate, one use or the other must be chosen. If the owner is a mine operator, the support estate is used to exploit the mineral estate. When the right of support is held by the surface owner, its use is to support that surface and prevent subsidence. Thus, although Pennsylvania law does recognize the support estate as a 'separate' property interest, it cannot be used profitably by one who does not also possess either the mineral estate or the surface estate.”
Id., 480 U.S. at 501, 107 S.Ct. at 1250.
We need not address here whether the Supreme Court’s interpretation of Pennsylvania law in this area is accurate.
. Most courts have required that the fraction be reduced to 1 in order for there to be a taking and compensation paid. See, e.g. Lucas, supra; Del-tona, supra. However, the Federal Circuit Court appears to allow the payment of compensation for a taking when the result is somewhat less than 1. See Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed.Cir.1994); Florida Rock Industries v. United States, 18 F.3d 1560 (Fed.Cir.1994).
. The Commonwealth also contends that if we find the regulation restricts Coal Owners’ ability to mine their coal, we should only find that there has been a temporary taking because regulatory takings are temporary in nature and only exist until invalidated by a court. In response, Coal Owners argue that they are not seeking to invalidate the regulation and only seek compensation for a total taking of their coal estate. Not only is Coal Owners’ argument at variance with the relief sought in their petition for review, but it is beyond this Court’s jurisdiction if we find the regulation null and void as a taking. Our jurisdiction only extends to the validity of the regulation. Once the regulation is declared invalid, the nature of the take and compensation due must be determined in a petition for the appointment of a
We note, however, without deciding this issue, that our Supreme Court in Miller & Son Paving, Inc. v. Plumstead Township, supra, recently addressed whether property was temporarily taken when landowners were prevented from using their land for a limited time until a zoning ordinance was amended. There, Miller owned property in an R1 residential district that he wanted to use for quarrying, a use not permitted in that zone. The Court held there was no temporary taking of the land because it still had other viable uses as a residential property.