Condemnation of .036 Acres, More or Less, of Land Owned by Wexford Plaza Associates, In re, 7
| Decision Date | 18 April 1996 |
| Docket Number | No. 1,No. 7,7,1 |
| Citation | 674 A.2d 1204 |
| Parties | In re CONDEMNATION OF .036 ACRES, MORE OR LESS, OF LAND OWNED BY WEXFORD PLAZA ASSOCIATES, a Partnership With Graham Realty Co. as General Partner and/or William L. Bauerle, Jr., et ux. and/or William L. Bauerle, et ux., and Located Between Booker Drive (A Public Road Located in the Township of Pine, Allegheny County, Pennsylvania) and Lotof the Wexford Plan Subdivision(Recorded in P.B.V. 176, Pages 8-11) by the Township of Pine for the Opening and Construction of a Public Road. Appeal of TOWNSHIP OF PINE, ALLEGHENY COUNTY, Pennsylvania, William L. Bauerle and Gita K. Bauerle. |
| Court | Pennsylvania Commonwealth Court |
Samuel P. Kamin, for Appellants.
Gary J. Gushard, for Appellee, Township of Pine.
Before DOYLE and FRIEDMAN, JJ., and NARICK, Senior Judge.
William L. Bauerle, Jr. and his wife, Gita K. Bauerle, (Condemnees) appeal from an order of the Court of Common Pleas of Allegheny County (trial court) overruling both Condemnees' preliminary objections and their amended preliminary objections to a declaration of taking filed by the Township of Pine (Township) condemning property owned by Condemnees.
On December 30, 1994, the Township, a home rule municipality in Allegheny County filed a declaration of taking as authorized by Township Resolution No. 470, condemning less than 600 square feet of a 1.8 acre parcel of property owned by Condemnees. 1 (R.R. at 5a-15a, 34a, 482a.) The property, on which condemnees operate a farm and garden center, (R.R. at 581a), is located at the intersection of State Road 19 and Booker Drive, an existing public road in the Township. The purpose of the condemnation was to acquire land necessary to open and construct a new public road (Wexford Plaza Drive) to connect Booker Drive to the Wexford Plaza Shopping Center, a strip mall owned by Wexford Plaza Associates. The Township offered Condemnees $1,000 as payment for the property, which Condemnees rejected.
On January 31, 1995, Condemnees filed preliminary objections to the condemnation, 2 which were followed by a series of responsive pleadings. 3 Then, in June 1995, five months after their original preliminary objections, Condemnees filed amended preliminary objections without seeking leave of court. In their amended preliminary objections, Condemnees allege for the first time that the Township's condemnation was void ab initio. Condemnees maintain that, because the property in question qualifies as agricultural land, 4 (R.R. at 584a), the Township's condemnation violates section 306 of the Administrative Code of 1929 (Act 1979-100), 5 71 P.S. § 106, which requires prior approval for the condemnation from the Agricultural Lands Condemnation Approval Board (Agricultural Board). 6 (R.R. at 488a-91a.) The Township and Wexford Plaza Associates both filed preliminary objections to Condemnees' amended preliminary objections, arguing that the amended preliminary objections should be dismissed as untimely. (R.R. at 540a-43a; 551a-54a.)
Following a hearing on the matter, the trial court overruled Condemnees' initial preliminary objections on substantive grounds 7 and overruled the amended preliminary objections as being untimely filed.
Condemnees raise three issues on appeal. 8 First, Condemnees argue that the trial court erred in failing to hold that the Township lacked jurisdiction to condemn Condemnees' property because the Township failed to comply with Act 1979-100, 71 P.S. § 106, which requires the Township to request approval of the condemnation from the Agricultural Board. Condemnees also contend that the declaration of taking was fatally defective because the Township authorized it by resolution rather than by ordinance. Finally, Condemnees assert that the Township acted in bad faith in condemning the property because (a) the condemnation was excessive, (b) the new road did not comply with legislative and municipal standards, and (c) the taking was for private purposes.
Initially, Condemnees maintain that, because the Township failed to request approval from the Agricultural Board before proceeding with the condemnation, the taking is void ab initio as a violation of Act 1979-100, 71 P.S. § 106. In their brief, Condemnees claim to have properly raised this issue, (Condemnees' brief at 10); however, they did not include it in their original preliminary objections; instead, Condemnees raised this argument before the trial court only by way of the amended preliminary objections filed five months later.
Preliminary objections in the context of eminent domain actions serve a different purpose than preliminary objections filed in other civil actions. North Penn Water Authority v. A Certain Parcel of Land, 168 Pa.Cmwlth. 477, 650 A.2d 1197 (1994). In eminent domain cases, preliminary objections are intended as a procedure to resolve expeditiously the factual and legal challenges to the declaration of taking before the parties proceed to determine damages. Id. Thus, with regard to preliminary objections, section 406 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-406 (emphasis added), provides in pertinent part:
(a) Within thirty days after being served with notice of condemnation, the condemnee may file preliminary objections to the declaration of taking. The court upon cause shown may extend the time for filing preliminary objections. Preliminary objections shall be limited to and shall be the exclusive method of challenging (1) the power or right of the condemnor to appropriate the condemned property unless the same has been previously adjudicated; (2) the sufficiency of the security; (3) any other procedure followed by the condemnor; or (4) the declaration of taking. Failure to raise these matters by preliminary objections shall constitute a waiver thereof.
....
(c) All preliminary objections shall be raised at one time and in one pleading. They may be inconsistent.
....
(e) The court shall determine promptly all preliminary objections and make such preliminary and final orders and decrees as justice shall require, including the revesting of title.
In light of these provisions, the trial court properly overruled Condemnees' amended preliminary objections. Here, Condemnees did not raise their amended preliminary objections within thirty days of the receipt of the condemnation notice and have provided no excuse for the late filing. Because Condemnees failed to raise the Township's violation of Act 1979-100 in their initial preliminary objections, raising the issue only in their untimely amended preliminary objections, they have waived it. 26 P.S. § 1-406(a); Appeal of Edgewood Building Co., 43 Pa.Cmwlth. 911, 402 A.2d 276 (1979) (). 9
Next, Condemnees argue that the declaration of taking was invalid because it was authorized by resolution as opposed to being enacted by ordinance as required by the Second Class Township Code. We specifically rejected this argument in Appeal of Heim, 151 Pa.Cmwlth. 438, 617 A.2d 74 (1992), appeal denied, 535 Pa. 625, 629 A.2d 1385 (1993), Jordan Appeal, 73 Pa.Cmwlth. 572, 459 A.2d 435 (1983).
In Jordan Appeal, we recognized that the opening of a street is not synonymous with the concept of the eminent domain taking by which the interest in the land for the street is acquired. Consequently, we concluded that, although section 1731 of the Borough Code 10 required the enactment of an ordinance for the opening of a street, a borough could authorize a declaration of taking by resolution.
We applied this rationale in Appeal of Heim. In that case, a second class township authorized a declaration of taking with a resolution, and the condemnees argued that the declaration of taking was invalid because it should have been based upon an ordinance. Analogizing Jordan Appeal, we noted that, although section 1101 of the Second Class Township Code, 53 P.S. § 66101, requires the enactment of an ordinance for the laying out and opening of streets, that Code does not specify what procedure should be used to authorize the taking of land for a street; thus, we held that a taking could be authorized by resolution. Because the Township's Resolution No. 470 authorizes the taking of Condemnees' property, the resolution is sufficient for that purpose. 11 Appeal of Heim.
Finally, Condemnees assert that the Township acted in bad faith in condemning the subject property. 12 First, Condemnees claim that the Township condemned a greater amount of property than was reasonably necessary for the new road because, if the Township had elected an alternative road plan, it would not have been necessary to take Condemnees' property. Further, Condemnees argue that the Township acted in bad faith when it approved the proposed road because the road does not comply with legislative and Township standards in that it will encroach upon the remaining portion of Condemnees' property, will have no berm, will be too narrow and will have unsafe sight angles.
Initially, we point out that Condemnees failed to raise their excess condemnation objection in the original preliminary objections and, therefore, have waived the issue. 26 P.S. § 1-406(a). As to this objection, however, we note that site selection for the road is exclusively within the power of the Township as condemnor; 13 moreover, neither the court nor Condemnees are permitted to substitute their discretion for that of the Township for purposes of questioning the design of the proposed roadway. In re Township of Heidelberg For Footpath, 58 Pa.Cmwlth. 321, 428 A.2d 282 (1981); Swartz v. Pittsburgh Public Parking Authority, 63 Pa.Cmwlth. 434, 439 A.2d 1254 (1981).
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