822 A.2d 846 (Pa.Cmwlth. 2003), In re Condemnation of Certain Properties and Property Interests for Use as Public Golf Course

Citation:822 A.2d 846
Opinion Judge:The opinion of the court was delivered by: Judge Pellegrini *fn1
Party Name:In re CONDEMNATION by the City of Coatesville OF CERTAIN PROPERTIES AND PROPERTY INTERESTS FOR USE AS a PUBLIC GOLF COURSE and Related Facilities and for Other Recreational Purposes. Property 123 Mount Airy Road, Coatesville, PA 19320, Tax Parcel No. 38-2-29.1, (Valley Township) and Tax Parcel No. 28-9-91 (West Caln Township). Appeal of the City of
Case Date:April 07, 2003
Court:Commonwealth Court of Pennsylvania
 
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Page 846

822 A.2d 846 (Pa.Cmwlth. 2003)

In re CONDEMNATION by the City of Coatesville OF CERTAIN PROPERTIES AND PROPERTY INTERESTS FOR USE AS a PUBLIC GOLF COURSE and Related Facilities and for Other Recreational Purposes.

Property 123 Mount Airy Road, Coatesville, PA 19320, Tax Parcel No. 38-2-29.1, (Valley Township) and Tax Parcel No. 28-9-91 (West Caln Township).

Appeal of the City of Coatesville.

Condemnation by the City of Coatesville of Certain Properties and Property Interests for Use as a Public Golf Course and Related Facilities and for Other Recreational Purposes.

Property 123 Mount Airy Road, Coatesville, PA 19320 Tax Parcel No. 38-2-29.1 (Valley Township) and Tax Parcel No. 28-9-91 (West Caln Township) Richard A. Saha and Nancy K. Saha, h/w.

Appeal of Richard A. Saha and Nancy K. Saha.

Commonwealth Court of Pennsylvania

April 7, 2003.

Argued Nov. 6, 2002.

Reargument En Banc Denied May 29, 2003.

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Herbert Bass, Philadelphia and John S. Carnes, Jr., West Chester, for appellant, The City of Coatesville.

Scott Yaw, Malvern, for appellee, Saha.

BEFORE: PELLEGRINI, Judge, and SIMPSON, Judge, and MIRARCHI, JR., Senior Judge.

OPINION

PELLEGRINI, Judge.1

Before us are the cross-appeals of the City of Coatesville (City) and Richard A. Saha and Nancy K. Saha (Condemnees) from an order of the Court of Common Pleas of Chester County (trial court) sustaining in part and overruling in part Condemnees' preliminary objections to the City's declarations of taking under the Eminent Domain Code.2

On August 2, 2000, the City filed a declaration of taking exercising its power of eminent domain "for the purposes of creating and establishing a public golf course and related facilities and other recreational uses comprising a regional family recreational complex[.]" Pursuant to that declaration, the City sought to condemn a 47.5-acre parcel belonging to Condemnees located outside of the City at 123 Mount Airy Road in Valley Township. The City excluded a six-acre parcel and a non-exclusive right-of-way connecting the six-acre parcel with Mount Airy Road from the property it sought to condemn.

In response to the declaration of taking, Condemnees filed 28 preliminary objections alleging, inter alia, that the Third Class City Code3 did not authorize the taking of land by eminent domain for a golf course, the proposed use was not for a public purpose, the plans presented by the City indicated that only nine acres of Condemnees'

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property would be used, and the property was located outside of the City.4 Subsequently, the City filed an amended declaration of taking seeking to amend the purpose of the condemnation to the creation of "a public golf course and golf-related facilities." Condemnees then filed a motion to strike the City's amended declaration of taking contending that the Eminent Domain Code provided no authority for such a filing in this case, the City had not obtained leave of court to file the amended declaration, and City Council had taken no official action which authorized the filing.

Following an evidentiary hearing and oral argument,5 the trial court entered the following order:

AND NOW, this 11th day of January, 2002, the preliminary objections interposed by Richard A. and Nancy K. Saha as Condemnees pursuant to Section 406 of the Eminent Domain Code, 26 P.S. § 1-406 to the declaration of taking filed by the City of Coatesville as Condemnor on August 2, 2000 and amended by filing of February 13, 2001 are SUSTAINED-IN-PART and OVERRULED IN PART. Specifically, the Condemnees' Motion to Strike the amended declaration of taking filed on or about February 13, 2001 is hereby GRANTED. The Condemnees' preliminary objection challenging the adequacy of the statement of purpose contained in the declaration of taking filed on or about August 2, 2000 is SUSTAINED with leave and direction to the City to amend the said declaration so as to specify that the purpose for which the Condemnees' lands have been taken is limited to and those lands shall be used for nothing other than as and for a municipal golf course, a component thereof, or a facility directly ancillary thereto such as a golf training facility under the auspices of and as a member of The First Tee National Association; an initiative of the World Golf Foundation dedicated to providing affordable access to golf especially to youth of limited financial means. The said Amendment shall be included in the amended filing described immediately below.

The Condemnees' preliminary objection challenging the informational basis for and the rationality of the creation of Exception Tract # 1 for retention by the Condemnees, is SUSTAINED with leave and direction to the City to amend the said declaration so that the tract excepted therefrom for retention by the Condemnees conforms to an application for subdivision approved by the governing body of Valley Township. Without limiting the foregoing, and absent relief granted by the Valley Township Zoning Hearing Board or an amendment of the applicable design regulations, the excepted tract shall provide road frontage in compliance with Valley Township's

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subdivision design regulations and shall be of sufficient area so as to include the Condemnees' existing home, accessory buildings, water source, sub-surface sanitary sewage disposal facility, and so as to permit the housing thereon of up to three horses; all in conformance with the use and area and bulk and design regulations of Valley Township. Unless the time period is extended by this Court for good cause shown, the City's application for subdivision approval shall be submitted to Valley Township not later than sixty (60) days from the date hereof. The Amended declaration of taking shall be filed with this Court not later than the 10th day next following approval of the City's application for subdivision approval. In all other respects the Condemnees' preliminary objections are hereby OVERRULED.

(Trial Court's Order dated January 11, 2002.) These appeals followed.6

I. APPEALABILITY

Though not raised by any of the parties, the trial court, in a supplemental opinion dated April 15, 2002,7 urges this Court to quash the cross-appeals of the City and Condemnees because its January 11, 2002 order was not a final, appealable order. It maintains that because, by its terms, the order sustained in part and overruled in part Condemnees' preliminary objections and in each instance in which Condemnees' preliminary objections were sustained, the City was granted leave and was directed to file an amended declaration of taking thereby curing the defect identified in by the objection, neither party was put out of court and further proceedings were contemplated; and, therefore, an immediate appeal was not appropriate.

Preliminary objections in the context of eminent domain actions serve a different purpose than preliminary objections filed in other civil actions. In re Condemnation of .036 Acres, More or Less, of Land Owned by Wexford Plaza Associates, 674 A.2d 1204 (Pa.Cmwlth.1996). Not only are the Rules of Civil Procedure not applicable to eminent domain proceedings, Gilyard v. Redevelopment Authority of Philadelphia, 780 A.2d 793 (Pa.Cmwlth.2001), but preliminary objections filed pursuant to Section 406 of the Eminent Domain Code8 serve a very

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different purpose than those filed under the Rules of Civil Procedure. In eminent domain cases, preliminary objections are intended as a procedure to resolve expeditiously the factual and legal challenges to a declaration of taking before the parties proceed to determine damages. North Penn Water Authority v. A Certain Parcel of Land, 168 Pa.Cmwlth. 477, 650 A.2d 1197 (1994). That does not mean that all matters relating to eminent domain preliminary objections are automatically appealable. For example, we held in North Penn Water that the dismissal of a single preliminary objection among many was not waived on appeal because its dismissal did not immediately need to be appealed until the other preliminary objections were resolved.

In this case, however, even though the trial court's January 11, 2002 order required further action by the City, that order resolved all outstanding preliminary objections, making it a final appealable order as a matter of right by either party. It was no less a final appealable order because it directed the City to take specific, affirmative action in order to overcome Condemnees' objections. In essence, it resolved any further objections Condemnees might raise to a second amended declaration of taking, and for all practical purposes, put them out of court making the order final and appealable. The direction that the City file a subdivision application with Valley Township, in effect, determined that the procedure leading up to the declaration of taking was improper, making that portion of the Order also appealable by the City. Moreover, if the City followed the direction of the trial court in amending its declaration of taking, some of the issues raised by the parties on appeal would be rendered moot, and, therefore, would never be considered in any appeal. Because the trial court's January 11, 2002 order effectively placed the parties out of court as to the issues raised in Condemnees' preliminary objections, it was a final and appealable order, and the City's and Condemnees' cross-appeals are properly before us for review.

II. THE CITY'S APPEAL

The City contends that the trial court erred in sustaining Condemnees' preliminary objections based on its conclusion that the City's partial condemnation of Condemnees' property was improper because the excepted parcel of property failed to conform to Valley Township's zoning and/or subdivision ordinances. Also, the size and location of...

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