Commonwealth Court has affirmed a Greene County, Pa., Court decision denying the owner of a Jefferson Township salvage yard compensation for property that was seized after it was found to represent a nuisance.
Dennis Ruschel, owner of Ruschel Auto Wrecking, had asked the appellate court to overturn a June 13 ruling by Greene County Judge William Nalitz. That order set aside an earlier order appointing a board of viewers to determine whether Ruschel should be compensated for the county's taking of his property.
The county seized Ruschel's salvage yard in October 2001 after Ruschel failed to clean up the property as required by a court order issued by Nalitz.
The county subsequently removed scrap metal and junk tires from the 1.2-acre site. The state of Pennsylvania’s Department of Environmental Protection removed contaminated soil from the property.
Nalitz had appointed the board of view in September after Ruschel claimed the county seized his property under the eminent domain code and as a result he was entitled to compensation.
Nalitz said the county's taking of the property was not eminent domain but an act of police power, under which the government has the power to enforce laws to provide for the safety, health and welfare of the community.
For years, the county, Jefferson Township and DEP had attempted to get Ruschel to clean up the property.
In May 2000, DEP issued an administrative order alleging Ruschel was disposing of regulated wastes at the site without a permit. DEP received a court order requiring Ruschel to clean up the property, but he failed to do so.
Ruschel was again ordered to clean up the property after the county and Jefferson Township filed a lawsuit against him, claiming the salvage yard created a health and safety hazard for the community.
Nalitz ordered Ruschel in August 2001 to halt operations at the yard until he cleaned up the property in a manner consistent with DEP regulations.
He also ruled that if Ruschel failed to comply with the order, the county could take possession of the property, sell the inventory and use the proceeds to clean up the yard. Ruschel failed to comply with the order and the county seized the property.
In appealing the judge's decision, Ruschel claimed the county's action went well beyond mitigating the nuisance. He maintained that valuable property, including antique car parts and business records, had been removed from the site.
In its decision, Commonwealth Court noted that Nalitz's order had given Ruschel the opportunity to clean up the property before it was seized. He failed to respond.
As a result, the actions by the county were not "unduly oppressive," the court said
The court further noted that Nalitz had determine Ruschel's property was a public nuisance. The taking of the property did not met the test established by the court for requiring compensation because the nuisance affected the interests of the general public rather than those of a limited class of people, the court said.
Nalitz's order permitted the county to liquidate all of the inventory, not just the batteries, tires and vehicle gas tanks that had caused the nuisance, the court said. Ruschel could not challenge this condition because he had failed to appeal the August 2001 order, the court said.
Though there are times an action involving police powers may result in a taking requiring compensation, this wasn't one of them, the court said.
"Here, county took control of Ruschel's property to remove the source of danger to the health and welfare of the community and because county is validly using its police power in a reasonable manner to abate an immediate public nuisance, there can be no finding of a taking, despite the impact this exercise of police power may have of the defendant," the court said. Observer-Reporter (Pennsylvania)