IN RE CONDEMNATION BY CTY. OF ALLEGHENY

• Decision Date: 23 August 2004
• Citation: 861 A.2d 387
• Parties: In re the CONDEMNATION by the County of Allegheny, OF a CERTAIN PARCEL OF LAND, IN the TOWNSHIP OF ROBINSON, ALLEGHENY COUNTY, now or formerly of Russell M. Keith and Susan L. Keith (Husband and Wife) for the construction of The Settler's Cabin Interchange Appeal of Russell M. Keith and Susan L. Keith, Husband & Wife.
• Court: Pennsylvania Commonwealth Court

861 A.2d 387

In re the CONDEMNATION by the County of Allegheny, OF a CERTAIN PARCEL OF LAND, IN the TOWNSHIP OF ROBINSON, ALLEGHENY COUNTY, now or formerly of Russell M. Keith and Susan L. Keith (Husband and Wife) for the construction of The Settler's Cabin Interchange

Appeal of Russell M. Keith and Susan L. Keith, Husband & Wife.

Commonwealth Court of Pennsylvania.

Argued May 3, 2004.

Decided August 23, 2004.

Ordered Published November 10, 2004.

Gregory A. Biernacki, Pittsburgh, for appellants.

Howard M. Louik, Pittsburgh, for appellee.

BEFORE: McGINLEY, Judge and PELLEGRINI, Judge, and KELLEY, Senior Judge.

OPINION BY Senior Judge KELLEY.

Russell M. Keith and Susan L. Keith (Condemnees) appeal from the order of the Court of Common Pleas of Allegheny County (trial court) overruling their preliminary objections to the Declaration of Taking filed by the County of Allegheny (Condemnor) pursuant to the provisions of the Pennsylvania Eminent Domain Code.¹ We affirm.

In 1962, Condemnees acquired a 22,051 square foot parcel of property located in Robinson Township, Allegheny County. The property lies between Campbell's Run Road and State Route 22. Condemnees obtained the proper building permits and constructed two structures on the property as part of a light industrial, equipment manufacturing complex.

In 1993, the Township enacted a Zoning Ordinance which designated the area in which the subject parcel is located as a C-4 Commercial Zoning District. Although the use of the property was a permitted use, the structures located on the property did not meet the setback requirements of the new Zoning Ordinance. Specifically, Section 1403A(6)(A) of the Township's Zoning Ordinance provides that no structure shall be located within fifty (50) feet of any property line or public right-of-way.

However, Part 25A of the Zoning Ordinance recognizes nonconforming lots, structures or uses that existed prior to its adoption.² Thus, because the structures on Condemnees property did not conform to the setback requirements of the Zoning Ordinance, they were recognized as nonconforming structures pursuant to the foregoing provisions.

On September 16, 2002, the Allegheny County Chief Executive approved Ordinance 46-02 enacted by the Allegheny County Council. Ordinance 46-02 authorized Condemnor to acquire land by condemnation for the construction of the Settler's Cabin Interchange on State Route 22 at Campbell's Run Road and Ridge Road in the Township. As a result, on December 11, 2002, Condemnor filed the instant Declaration of Taking acquiring in fee simple a right-of-way at the rear of Condemnee's parcel totaling approximately 1,856 square feet.³

On January 17, 2003, pursuant to Section 406 of the Eminent Domain Code⁴, Condemnees filed preliminary objections to the Declaration of Taking in which they alleged, inter alia:

5. The area described in the Declaration of Taking for the construction and operation of a highway interchange known as the Settlers Cabin Interchange, will be approximately 45 feet from the main building on the Condemnees' lot, and less than 25 feet from other existing structures on the property in which Condemnees conduct business.

6. The new construction of the Settlers Cabin Interchange will put the Condemnees' property in violation of [Section 1403A(6)(A) of the Township's Zoning Ordinance].

7. The Condemnor's description [of the] land taken in the Viewers' Plan ... is in error, such that the Condemnor purports to take 1,856.08 square feet of land, when the Condemnor has actually taken the property completely, under the holding of Amoco Oil Company v. [Department of Transportation, 679 A.2d 1369 (Pa.Cmwlth.1996), petition for allowance of appeal denied, 547 Pa. 758, 692 A.2d 567 (1997)].[⁵]

* * * 11. [Condemnor]'s design of the Settlers Cabin Interchange construction project creates an excessive taking of Condemnee's property in the following respects:

a) It appropriated a greater amount of property than is reasonably required for the contemplated purposes of the interchange construction....

12. [Condemnor], in bad faith, has exercised eminent domain authority in derogation of the rights of the [Condemnees], private citizens, to hold property in the following manner:

* * *

b) It acquired excess property not needed for the construction of the new Settlers Cabin Interchange....

* * *

14. The Declaration of Taking as filed does not properly describe the "larger parcel" taken in that it only describes a small portion of the entire parcel....

Preliminary Objections to the Declaration of Taking at 2-3.

On August 4, 2003, the trial court issued an order and opinion disposing of Condemnees' preliminary objections in which it stated the following, in pertinent part:

It appears that Amoco Oil Co. is a case of first impression in Pennsylvania. A literal reading of this case compels the result that every taking that decreases the size of a property that was legally non-conforming will result in a finding that the dimensional non-conformity was enlarged followed by an automatic extinguishment of the non-conforming use. This will require ... that for every slight taking of a dimensionally non-conforming property, that the condemnor must automatically acquire the entire property, regardless of cost, and that whichever municipality was affected, would lose the benefit of whatever economic activity occurred on the property.

Amoco Oil Co. is distinguishable from the instant case in that [in Amoco Oil Co.,] the gasoline service station went out of business after the taking placed the station's gasoline pumps closer to the roadway than they previously were under the legal non-conforming use. In the instant case, the property is still being used as before. For the above reasons, the Preliminary Objections are premature and are overruled.

Trial Court Opinion at 3-4. Based on the foregoing, the trial court issued an order overruling Condemnees' preliminary objections. Id. at 5. Condemnees then filed the instant appeal in this Court.⁶

In this appeal, Condemnees claim: (1) the trial court erred in overruling their preliminary objections to the Declaration of Taking; and (2) the trial court erred in shifting the burden of proof to Condemnees to seek a variance to the Township's Zoning Ordinance rather than requiring Condemnor to pay full compensation for extinguishing the valid nonconforming use.

Condemnees first claim that the trial court erred in overruling their preliminary objections to the Declaration of Taking. Specifically, Condemnees allege that the trial court erred in: (1) failing to determine that their lawful nonconforming use was extinguished by the condemnation; (2) failing to determine that Condemnor effectuated a de facto taking of the structures on the property; and (3) failing to determine that this de facto taking of the structures constituted an abuse of discretion and an excessive taking. We do not agree.

In Milas Appeal, 36 Pa.Cmwlth. 1, 387 A.2d 183 (1978), a municipal authority filed a declaration of taking for a right-of-way or easement 30 feet in width during construction, and 20 feet in width thereafter, to lay, maintain, operate and remove a single line of sewer pipe across the landowner' property. Pursuant to Section 406 of the Eminent Domain Code, the landowners' filed preliminary objections to the declaration of taking in which they alleged, in pertinent part, that "[landowners] object to the declaration of taking as to the nature of the title acquired and the description of the property condemned as the same is not averred but in fact is the entire interest of the [landowners]." Milas Appeal, 387 A.2d at 184.

Thus, as in the instant appeal, the landowners in Milas Appeal alleged that the partial de jure condemnation resulted in a larger de facto taking of their property. As a result, as in the instant appeal, the landowners in Milas Appeal preliminarily objected to the declaration of taking on the basis that the nature of the title taken and the description of the property as stated therein failed to include the larger property appropriated by the de facto taking.

Ultimately, in Milas Appeal, the trial court dismissed the landowners' preliminary objections without a hearing, and they appealed the trial court's order to this Court. Id. On appeal, the landowners alleged, inter alia, that the trial court had erred in dismissing this preliminary objection. In disposing of this allegation of error, this Court stated the following, in pertinent part:

The [landowners]' second preliminary objection is directed to the nature of the title acquired and the description of the property condemned as set forth in the declaration of taking. It alleges that the effect of the Authority's action is to take their entire property by rendering it valueless. That this is the intendment of the objection is made clear by the [landowners'] brief, the closing paragraph of which is as follows:

["U]nder the guise of condemning an easement the condemnor has totally ruined their property, is basing its estimation of just compensation on only a part of the property, and will present its case to a board of viewers in the unjustified context of a partial taking case. This Court should not allow such a submersion of the Legislative intent to reform condemnation procedure."...

Thus, the [landowners] are seeking a judicial determination of the value of their property after condemnation of the easement for the sewer line. This is not a judicial function. The [landowners] are entitled to the difference between the fair market value of their property before and after condemnation, both values to be fixed by a jury of view or a traverse jury on appeal; they are not entitled to a judicial declaration that their property has no value after the take.

This is not a case, as is urged by the [landowners], of a preliminary objection raising a de facto taking; the [landowners] have failed to describe anything done with

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