In re Condemnation by City of Coatesville

• Decision Date: 13 April 2006
• Citation: 898 A.2d 1186
• Court: Pennsylvania Commonwealth Court
• Parties: In Re: CONDEMNATION BY the CITY OF COATESVILLE of certain property and property interests Property: Tax Parcel No. 38-3-25 Valley Station Road Coatesville, PA 19320 Appeal of: Estate of Patricia A. Gregory. In Re: Condemnation by the City of Coatesville of certain property and property interests Property: Tax Parcel No. 38-3-25 Valley Station Road Coatesville, PA 19320 Appeal of: City of Coatesville.

Page 1186

898 A.2d 1186

In Re: CONDEMNATION BY the CITY OF COATESVILLE of certain property and property interests Property: Tax Parcel No. 38-3-25 Valley Station Road Coatesville, PA 19320 Appeal of: Estate of Patricia A. Gregory In Re: Condemnation by the City of Coatesville of certain property and property interests Property: Tax Parcel No. 38-3-25 Valley Station Road Coatesville, PA 19320 Appeal of: City of Coatesville.

Commonwealth Court of Pennsylvania.

Argued February 28, 2006.

Decided April 13, 2006.

Reargument Denied June 5, 2006.

Herbert Bass, Philadelphia and Andrew G. Lehr, West Chester, for appellant, City of Coatesville.

Alan J. Jarvis, Coatesville, for appellee, Estate of Patricia A. Gregory.

BEFORE: PELLEGRINI, Judge, and FRIEDMAN, Judge, and McCLOSKEY, Senior Judge.

OPINION BY Judge PELLEGRINI.

Before us is the appeal of the Estate of Patricia A. Gregory (Estate) from an order of the Court of Common Pleas of Chester County (trial court) overruling its preliminary objections to a declaration of taking filed by the City of Coatesville (City), a home rule municipality¹ and formerly a city of the third class, under the Eminent Domain Code² to take property that the Estate owns in Valley Township for a public golf course.³

On January 4, 2002, the City filed a declaration of taking condemning real property known as Chester County Tax Parcel 38-3-25 (Property) for the purpose of creating and establishing a public golf course and related facilities (First Declaration of Taking). The notice of filing of declaration of taking identified the record owner/condemnee as the Wilmington and Northern Railroad Company among others.⁴ The City served notice of the First Declaration of Taking on the Wilmington and Northern Railroad Company.

However, the Estate, not the Wilmington and Northern Railroad Company, was the owner of the Property at the time of the condemnation.⁵ That necessitated the City, on July 21, 2004, to file a "Second Declaration of Taking" against the Estate which referenced three sections of the Third Class City Code⁶ as authority for the taking. The Estate filed preliminary objections⁷ contending, among other things, that the City did not have the power to condemn the Property under the Third Class City Code because it was a home rule municipality, and it did not have the power to condemn the Property for a recreational facility because it was a proprietary business, not a public purpose. The City's preliminary objections to the Estate's preliminary objections contended that the Estate had no standing, had waived its right to file preliminary objections, and had set forth no cognizable claim.

On September 3, 2004, the trial court entered an order confirming that the Wilmington and Northern Railroad Company had waived its right to challenge the condemnation and that the First Declaration of Taking was "valid and in full force and effect." On June 29, 2005, the trial court entered two orders. One of the orders overruled the Estate's preliminary objections, holding that the challenge to the taking for a public purpose was premature to challenge the future use of the condemned Property. Further, even though the City was a home rule municipality, it still had the power to condemn the Property for a public golf course and other attendant recreational purposes. Both the Estate and the City appealed.⁸

A.

Initially, the Estate contends that the trial court erred in overruling as premature its preliminary objection that the City could not condemn the Property because the condemnation was to advance a proprietary rather than a public use. While takings for elimination of blight might or might not result in an impermissible use of a property, the challenge might be premature because the exact nature of the use has yet to be discerned. But see In re Redevelopment Authority of City of Philadelphia, 891 A.2d 820 (Pa. Cmwlth.2006). Nonetheless, Section 406(a) of the Eminent Domain Code, 26 P.S. § 1-406(a), provides that the condemnee is required to raise in preliminary objections the power or right of the condemnor to appropriate the condemned property. Thus, a preliminary objection must be filed when the condemnee asserts the purpose of the take is not a public one. This has the beneficial effect that the condemning agency knows it can use the property, and the condemnee does not have its property taken for something other than a public purpose. Because the declaration of taking lists the purpose of the taking as a "public golf course, golf-related facilities and other recreational uses," the Estate's challenge to the City's power to take for those purposes is not premature.

As to whether the City has the power to take, the Estate contends that the construction of a public golf course by the City is a proprietary use, not a public use, in violation of Article 1, Section 10 of the Pennsylvania Constitution and Section 2962(c)(1) of the Home Rule Law, 53 Pa. C.S. § 2962(c)(1),⁹ because there is no statutory requirement that the City operate a golf course; the public golf course business may be carried on by a private enterprise; and the purpose of a public golf course is to raise revenue for the City.¹⁰

What this argument ignores is that we addressed this very issue in In re Condemnation of Certain Properties and Property Interests for Use as a Public Golf Course, 822 A.2d 846 (Pa.Cmwlth. 2003) (hereinafter In re Saha), involving the taking of land for the very same golf course. In that case, we concluded that the City's condemnation of land for the golf course and recreational use was a public use, not a proprietary use. In doing so, we relied on Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 222, 200 A. 834, 840 (1938), where our Supreme Court declared:

The taking of land for a public golf course or playground would be for a public use although, while some players are using it, all other members of the public are necessarily excluded from utilizing or enjoying the facilities. The difference in the duration of occupancy in these various instances is one of degree. It is not essential that the entire community or even any considerable portion of it should directly enjoy or participate in an improvement in order to make its use a public one.

In re Saha, 822 A.2d at 856; see also City of New Castle v. Lawrence County, 353 Pa. 175, 44 A.2d 589 (1945) (holding that a city-owned golf course with facilities incidental to the operation of the golf course, i.e., club rooms, locker rooms, ladies' bath and restaurant, was "public property used for public purposes" for the purposes of tax exemption). Given our decision in In re Saha, the Estate's preliminary objection was properly dismissed by the trial court.

B.

Even if the taking was for a public purpose, because the City cited provisions contained in the Third Class City Code as authority to take the Property, the Estate contends that when the City became a home rule municipality in 1979, those provisions no longer applied because it was no longer a third class city. Absent those provisions, it then contends that the City cannot point to any authority that it has the power to take property, making the taking here illegal. The City argues that it still has the power given to it under the Third Class City Code, but even if does not, it still has the power under its home rule charter to condemn the Property. In essence, what we are being asked is to define the relationship between various municipal and county codes to home rule municipalities, and the power given to home rule municipalities by the Constitution and the laws of this Commonwealth.

Article IX, Section 2 of the Pennsylvania Constitution provides, in relevant part:

Municipalities shall have the right and power to frame and adopt home rule charters. . . . . A municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time.

When the General Assembly enacted Section 2961 of the Home Rule Law, 53 Pa. C.S. § 2961, it gave home rule charter communities the broadest powers and specifically required the presumption that those communities had the power to undertake the action they desired to take, and unless it was specifically denied, that action should be upheld. 53 Pa.C.S. § 2961 provides:

A municipality which has adopted a home rule charter may exercise any powers and perform any function not denied by the Constitution of Pennsylvania, by statute or by its home rule charter. All grants of municipal power to municipalities governed by a home rule charter under this subchapter, whether in the form of specific enumeration or general terms, shall be liberally construed in favor of the municipality. (Emphasis added).

However, while the General Assembly wanted the powers it granted in the Home Rule Law to be liberally construed in favor of the municipality, Section 2962(e) of the Home Rule Law, 53 Pa.C.S. § 2962(e), provides that a home rule municipality could not enact a regulation if there was a state statute applicable to every part of the Commonwealth. It provides:

Statutes of general application.—Statutes that are uniform and applicable in every part of this Commonwealth shall remain in effect and shall not be changed or modified by this subpart. Statutes shall supersede any municipal ordinance or resolution on the same subject.

The question of whether the Third Class City Code authorization to take property remains in effect is determined by whether that provision is "uniform and applicable in every part of this Commonwealth" and if not, whether the City, as a home rule municipality, still has the authority to take the Property.

Whether a provision contained in a city or county code applicable to that particular class of city or county is a statute that is "uniform and applicable in every part of this Commonwealth" has been decided somewhat inconsistently....