In re Condemnation by Township of Blythe of a Portion of Property Owned by Fatula, 021220 PACCA, 1244 C.D. 2018

Docket Nº:1244 C.D. 2018
Opinion Judge:PATRICIA A. McCULLOUGH, JUDGE
Party Name:In Re: Condemnation by the Township of Blythe of a Portion of the Property Owned by Julia Fatula, Anna Sciuchetti, Charles Bucklar, Jr., and John Bucklar, and the Unknown Heirs and Assigns of John Bucklar, Sr., and the Unknown Heirs and Assigns of Charles Bucklar, Sr., and Unknown Persons and Interested Parties, Located in Blythe Township, ...
Judge Panel:BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
Case Date:February 12, 2020
Court:Commonwealth Court of Pennsylvania
 
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In Re: Condemnation by the Township of Blythe of a Portion of the Property Owned by Julia Fatula, Anna Sciuchetti, Charles Bucklar, Jr., and John Bucklar, and the Unknown Heirs and Assigns of John Bucklar, Sr., and the Unknown Heirs and Assigns of Charles Bucklar, Sr., and Unknown Persons and Interested Parties, Located in Blythe Township, Schuylkill County, Schuylkill UPI 02-06-0006

Appeal of: Julia Fatula, Anna Sciuchetti, Charles Bucklar Jr. and John Bucklar

No. 1244 C.D. 2018

Commonwealth Court of Pennsylvania

February 12, 2020

OPINION NOT REPORTED

Argued: December 10, 2019

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

MEMORANDUM OPINION

PATRICIA A. McCULLOUGH, JUDGE

Julia Fatula, Anna Sciuchetti, Charles Bucklar Jr., and John Bucklar ("Condemnees") appeal from the August 10, 2018 order of the Court of Common Pleas of Schuylkill County (trial court) overruling, in part, and sustaining, in part, their preliminary objections ("POs") to Blythe Township's ("Township") Declaration of Taking of 6.322 acres in fee and a 2.221-acre parcel as a temporary construction easement for the construction and operation of a 1500-ton per-day construction and demolition waste recycling and disposal facility called the Blythe Recycling and Disposal Site ("the Landfill"). On appeal, Condemnees argue that the trial court erred in finding that (1) the Township did not delegate its eminent domain powers to the private landfill developers; and (2) the private landfill developers were not the primary and paramount beneficiaries of the Landfill. Condemnees also challenge the trial court's refusal to consider whether a second class Township may exercise its eminent domain powers for the primary purpose of engaging in a profitable enterprise with a private party.

1. Factual Background

Condemnees are one-half owners of certain property located on an old strip mine area in Blythe Township, Schuylkill County. (Trial court op., at 3.) The remaining one-half interest is held by the unknown heirs and assigns of John Bucklar, Sr. Id. at 1.

At some point prior to 2003, the Township decided to construct the Landfill. In November 2003, the Township entered into an agreement ("2003 FKV Agreement") with a private landfill developer, FKV LLC ("FKV"), to purchase a 400-acre parcel for the purpose of building and operating the Landfill. Id. at 3. The Landfill was to be financed by non-recourse bonds, meaning that it would be paid solely from the Landfill's revenues, with no initial outlay of money by the Township. (Reproduced Record (R.R.) at 53a.) The entire Landfill would not be constructed all at once. The Landfill would be constructed of cells and consist of up to six "cells," i.e., designated areas where the waste would be stored. (R.R. at 21a.)

Under the 2003 FKV Agreement, FKV would provide technical and financial expertise to the Township, assist it in securing all necessary approvals and permits, and help market the Landfill to potential customers. (R.R. at 21a.) The 2003 FKV Agreement provided that "Major Decisions" shall require the written approval of both the Township and FKV. Id. "Major Decisions" included: the hiring and firing of the operator of the facility, financing for the project, mortgaging or placing encumbrances on the Landfill, determining the Landfill's annual operating budget and, at issue here, the "acquisition or disposition … of any real property or interests therein for the [f]acility." (Trial court op., at 3.) In October 2007, the Township and FKV amended the 2003 FKV Agreement, but left intact the terms requiring written approval by FKV for real property acquisition and disposition by the Township ("2007 FKV Agreement"). (Trial court op., at 3-4.) Title to the 400-acre parcel was transferred to the Township by deed dated July 10, 2012. (R.R. at 83a.) Thereafter, FKV and the Township mutually cooperated with respect to the preparation, submission, and prosecution of an application with the Pennsylvania Department of Environmental Protection ("DEP") for a solid waste permit for the Landfill. Id. On January 20, 2015, the DEP issued Solid Waste Permit No. 101679 to the Township ("the Permit"). (R.R. at 121a-124a.) Among the challenges that the Township faced in designing and obtaining a permit for the Landfill was the Eastern Pit, an abandoned strip-mining pit with 50-foot highwalls, located partially on the Landfill site and partially on Condemnees' property. Under the Permit issued by the DEP, the Township was given two options regarding the Eastern Pit, either: (1) fill the entire Eastern Pit (including the portion located on Condemnees' property) to support the Landfill's liner system; or (2) modify the Permit to engineer a 100-foot mechanically-stabilized earthen wall ("MSE wall") adjacent to the Eastern Pit. (R.R. at 124a.) After considering the physical and financial benefits/detriments involved, the Township chose to backfill the entire Eastern Pit to support the Landfill's liner system, rather than build the MSE wall. This option required the Township to acquire a portion of Condemnees' property.

On September 6, 2017, FKV assigned all of its rights and interests in the 2007 FKV Agreement to Schuylkill C&D ("SCD" or together with FKV "private landfill developers"), with the exception of the right to recoup all of the actual costs it spent to that point to develop the Landfill. Id. On December 1, 2017, the Township and SCD entered into a Facility Management Agreement ("2017 SCD Agreement"). (R.R. at 20a.) Under the 2017 SCD Agreement, SCD agreed to act as an agent for the Township to, among other things, consult with and supervise the project engineer and other consultants for the Landfill concerning the development and preparation of specifications for the operation and maintenance of the facility; audit the operation of the Landfill to ensure compliance with federal, state, and local regulations, and permits and licenses; and be responsible for all sales and marketing of the Landfill. (R.R. at 84a.) In exchange for these responsibilities, and for the work previously performed, SCD would be compensated and take a proportionate share of the profits from the operation of the Landfill. (R.R. at 93a-94a.) Like the 2003 and 2007 FKV Agreements and the 2017 SCD Agreement, the Township was required to obtain FKV's prior written approval before acquiring or disposing of any real property. (R.R. at 85a.)

2. The Declaration of Taking

On March 14, 2018, the Township Board of Supervisors adopted Resolution 5 of 2018, authorizing the condemnation of 6.322 acres of Condemnees' property and a corresponding 2.221-acre temporary construction easement for the Landfill project.1 (R.R. at 134a-135a.)

On March 19, 2018, by way of Declaration of Taking (Declaration), the Township sought to condemn a portion of the Condemnees' property consisting of 6.322 acres taken in fee, which included a portion of the Eastern Pit and surrounding property, as well as a 2.221-acre parcel that partially surrounds the 6.322-acre parcel, for use as a temporary construction easement.2 The stated purpose of the taking was: 1) for landfill purposes-to conduct abandoned mine highwall reclamation, grading and construction, and maintenance of surface water controls that are authorized and/or required by permits issued by the [DEP], including but not limited to [DEP] Solid Waste Permit No. 101679, issued on January 20, 2015, and necessary for the construction and operation of [Township's] landfill, which is located on an adjacent parcel; and 2) to remove hazardous conditions, improve and make safe the current topography which includes abandoned open mine excavations and/or piles of overburden commonly known as "stripping pits" in order to protect, and preserve the public health, safety, convenience, and welfare of the residents of the Township as well as the general public.

(R.R. at 129a.)

3. Condemnees' Preliminary Objections

On April 11, 2018, Condemnees filed POs to the Declaration asserting, in relevant part, as follows: (1) the public will not be the primary and paramount beneficiary of the Township's exercise of eminent domain because the financial rewards the private landfill developers will receive from the Landfill will exceed those to be gained by the Township; (2) the Township's power of eminent domain was unconstitutionally delegated to the landfill developers because the Township was required to obtain the landfill developers' written approval before acquiring any property necessary for the construction and operation of the Landfill; and (3) the Township's taking was excessive and done in bad faith because the Township could construct an MSE wall, rather than fill the Eastern Pit, and there would be no need to condemn their property.

4. The Evidentiary...

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