Commonwealth v. Bennett Family Props., LLC

• Decision Date: 10 May 2021
• Docket Number: No. 218 C.D. 2020,218 C.D. 2020
• Citation: 255 A.3d 635
• Parties: IN RE: CONDEMNATION BY the COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT-OF-WAY OF STATE ROUTE 0443, SECTION 02S, IN the TOWNSHIP OF MAHONING Commonwealth of Pennsylvania, Department of Transportation v. Bennett Family Properties, LLC, Appellant
• Court: Pennsylvania Commonwealth Court

255 A.3d 635

IN RE: CONDEMNATION BY the COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT-OF-WAY OF STATE ROUTE 0443, SECTION 02S, IN the TOWNSHIP OF MAHONINGCommonwealth of Pennsylvania, Department of Transportation

v.Bennett Family Properties, LLC, Appellant

No. 218 C.D. 2020

Commonwealth Court of Pennsylvania.

Argued April 12, 2021

Decided May 10, 2021

William L. Byrne, Wilkes-Barre, for Appellant.

Robert J. Kopacz, Assistant Chief Counsel, Scranton, for Appellee Department of Transportation.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge (P.), HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE COVEY

Bennett Family Properties, LLC (BFP) appeals from the Carbon County Common Pleas Court's (trial court) January 21, 2020 order overruling BFP's preliminary objections (Preliminary Objections) to the Commonwealth of Pennsylvania, Department of Transportation's (PennDOT) Declaration of Taking (Declaration). BFP presents two issues for this Court's review: (1) whether the trial court erred and abused its discretion by prohibiting testimony supporting BFP's claims that PennDOT failed to conduct a suitable investigation and reach an intelligent, informed decision before it filed the Declaration; and (2) whether the trial court incorrectly interpreted PennDOT's duties under the Eminent Domain Code (Code)¹ and case law, where uncontroverted evidence supports the trial court's assertion that PennDOT failed to satisfy those duties. After review, this Court affirms.

On December 12, 2018, PennDOT filed the Declaration with respect to three undeveloped BFP-owned real estate parcels located adjacent to State Route 0443 (State Route 443) in Mahoning Township (BFP Property). See Reproduced Record (R.R.) at 1a-11a. PennDOT claimed the taking of the parcels was necessary for a road widening project on State Route 443 (Project). On January 11, 2019, BFP filed the Preliminary Objections, asserting that PennDOT abused its discretion in failing to undertake a suitable investigation and/or make an intelligent, informed judgment regarding the taking, and PennDOT's appropriation of the BFP Property was an excessive taking. See R.R. at 15a-20a.

On October 17, 2019, the trial court held a hearing on BFP's Preliminary Objections. BFP presented the testimony of Joseph J. Bennett (Bennett), a BFP principal, and Gregory Haas (Haas), a licensed professional engineer as BFP's expert witness.

Bennett testified that BFP purchased the BFP Property in 2017, intending to develop it for commercial use. Bennett explained that he had communications with a fast food corporation's representatives regarding developing the BFP Property as a fast food restaurant. Bennett further reported that, in May 2018, he learned PennDOT was considering taking the BFP Property for stormwater retention basins (basins/retention ponds). Bennett stated that, after acquiring this information, he and his engineer met with PennDOT representatives regarding his development plans and suggested that the proposed basins would be better located on an adjacent property off of Route 443. Bennett expounded:

[M]y presentation to [PennDOT] was that the whole purpose for which [it is] widening [State Route] 443 is to allow better access without backing up traffic to all [of] these parcels on both sides of the street from the bridge out to Walmart, the McCall Bridge out to Walmart.

So why put [basins] in[?] Nobody's going to drive into a [basin], but they are going to drive into a KFC or a Wendy's.

R.R. at 170a. Bennett continued:

And we talked at that time about giving [PennDOT] an easement to bring the piping for [the basins from which it would] have been taking water off of [State Route] 443. Taking that water and taking it through [the BFP P]roperty and putting it in the back. So that land is less expensive. And it seemed like a viable alternative rather th[a]n buying my frontage. Buy inexpensive property in the back that would [allow] gravity [to] flow right to [it] for the placement of the [basins].

R.R. at 171a. Bennett recalled that, approximately one month later, PennDOT rejected his request.² Bennett learned that PennDOT had elected to take the BFP Property when he received a December 14, 2018 letter from PennDOT enclosing the Declaration.

During Bennett's testimony, PennDOT's counsel raised an objection to Bennett's reference to his intended plans for the BFP Property and the BFP Property's highest and best use, arguing that such testimony was not relevant at the proceeding's preliminary objection stage. After discussing the issue with both counsel, during which PennDOT's counsel stipulated that the BFP Property's highest and best use was for commercial use purposes, the Court sustained PennDOT's objection and precluded Bennett's testimony on BFP's intended use beyond the stipulation that, but for the taking, BFP would have used the BFP Property for commercial purposes. See R.R. at 155a-160a.

BFP's counsel also sought to present expert testimony from licensed appraiser Lisa Foreback (Foreback) about the BFP Property's highest and best use and the resulting impact of the taking. After a lengthy discussion with counsel, the trial court similarly precluded Foreback's testimony.

Haas testified on BFP's behalf that, after examining PennDOT's plans, he concluded that the BFP Property need not be taken, since the proposed basins could be placed on property located behind and north of the BFP Property (Sergentakis Properties). On cross-examination, Haas acknowledged that the purpose of the basins would be to mimic the natural drainage runoff but for the development. See R.R. at 184a. Haas admitted that his firm had not done any testing on the Sergentakis Properties to see if they were suitable for the basins. See R.R. at 192a. He did not know whether PennDOT's proposed basins would mimic the natural drainage because he did not thoroughly review the report. When asked if the basins he proposed on the Sergentakis Properties would mimic the drainage but for the improvements, Haas responded: "Possibly." R.R. at 194a. He also admitted that to relocate the basins to the Sergentakis Properties, PennDOT would need to install piping from State Route 443 to the infiltration basin, a considerable distance farther away, and then install additional piping from the Sergentakis Properties to Mahoning Creek, thereby affecting five private properties. See R.R. at 194a. Haas acknowledged that PennDOT would be required to maintain and/or obtain rights-of-way over the five properties and that he did not perform a cost analysis regarding any aspect of his proposal. See R.R. at 195a.

PennDOT's Engineering District 5 Right-of-Way Administrator Kenneth Kutchinsky (Kutchinsky) and its Design Engineer Joseph DiGirolamo (DiGirolamo) testified for PennDOT. Kutchinsky explained:

The [P]roject[ ] [is] basically[ ] a safety project along the corridor. Widening, upgrade of the shoulders, drainage to better facilitate the traffic through the corridor. Upgrading of some of the driveways also along the corridor to provide a designated access point to the properties as opposed to wide open free access.

So it's a safety project to install a center turn lane, as well as upgrade shoulders and improve the access points to the property -- adjacent properties.

....

[S]torm water management is something that [PennDOT] has to address when [it's] doing [its] projects. ...

There's in[-]depth engineering that goes on with what [PennDOT] call[s] preliminary engineering that starts early on in the project to, let's just say, 1,000 feet have a look at the corridor, get an idea of what [it] can and cannot do. Analyze alternatives. Go through a process of elimination.

And then progress into what [PennDOT] calls final design, which the right-of-way acquisition is in what [it] call[s] the final design phase.

R.R. at 212a.

Kutchinsky recalled that PennDOT began studying the possibility of a highway safety improvement project on State Route 443 as far back as 2013. PennDOT started the Project's preliminary design in 2014 and completed it in 2016. Thereafter, the preliminary plans were presented to the public for feedback.

DiGirolamo explained the extensive considerations involved in developing PennDOT's preliminary design:

So during preliminary design there's several matters that we take in it. One, is we look at the roadway, we design our roadway to meet all of the safety requirements. This was a safety improvement project. So ... we wanted to make sure that, you know, we address all the concerns of a normal typical highway project. That's ... repaving the road, reconstruction of the road. This [P]roject actually had two structurally[-]deficient bridges that were replaced. One[ ] is a full replacement and one's a superstructure replacement.

I look at storm water management. We look at access. We look [at] guide rail utility relocations[.]

....

Because of the linear nature of the [P]roject we have 2.2 miles. So we have to address storm water management for the entire [P]roject. So we look at the entire [P]roject. And, you know, starting from Ashtown Drive, you know, we, kind of, break the [P]roject up into basic drainage areas that are discharging and where they're discharging to[,] so we can maintain those.

So as you work your way through the [P]roject, you have Ashtown Drive and then the big block where the development is. That's called Carbon Plaza. So that was one drainage area or discharge point. Then you have from Carbon Plaza down to the Mall Lane, that was another one, which is [sic] the next roads that go north and south. Then from that point all the way to the 902 bridge, which is you can kind of see it. It goes off to the north. And then from the 902 bridge to the 440 - or to -- sorry. Mall Lane -- or not Mall Lane. Mahoning Mountain Road, East Penn. That was another area. And then from Mahoning Mountain Road, East Penn to the [State Route] 443 bridge. And then from the [State Route] 443 bridge all

...