IN RE CONDEMNATION BY URBAN REDEVELOPMENT

• Decision Date: 24 April 2003
• Parties: In the matter of CONDEMNATION BY THE URBAN REDEVELOPMENT AUTHORITY OF PITTSBURGH of Certain Land in the Third Ward of the City of Pittsburgh, Allegheny County, Pennsylvania. Terrance Arrington and Rhonda L. Arrington, his wife, Appellants, v. Urban Redevelopment Authority of the City of Pittsburgh.
• Court: Pennsylvania Commonwealth Court

822 A.2d 135

In the matter of CONDEMNATION BY THE URBAN REDEVELOPMENT AUTHORITY OF PITTSBURGH of Certain Land in the Third Ward of the City of Pittsburgh, Allegheny County, Pennsylvania.

Terrance Arrington and Rhonda L. Arrington, his wife, Appellants, v. Urban Redevelopment Authority of the City of Pittsburgh.

Commonwealth Court of Pennsylvania.

Argued February 5, 2003.

Decided April 24, 2003.

Kenneth J. Yarsky, II, Pittsburgh, for appellants.

Joel L. Lennen, Pittsburgh, for appellee.

BEFORE: COLINS, President Judge, PELLEGRINI, Judge, FRIEDMAN, Judge, LEADBETTER, Judge, COHN, Judge, SIMPSON, Judge, and LEAVITT, Judge.

OPINION BY President Judge COLINS.

Terrance Arrington and Rhonda L. Arrington (condemnees) appeal an Allegheny County Court of Common Pleas (common pleas court) order overruling their preliminary objections to a declaration of taking filed by the Urban Redevelopment Authority of Pittsburgh (Authority). We affirm the order of the common pleas court.

The property owned by the Arringtons that was condemned by the Authority is located on the periphery of the Bedford Redevelopment Project. The Bedford Project is an ongoing development project of the Bedford and Middle Hill areas in the City of Pittsburgh. The purpose of the project is to rid the area of blight conditions and open the area to new construction and development. In furtherance of the project the "Crawford-Roberts, Basic Conditions Report" was prepared in October 1972. Pursuant to that report, certain areas were found to be blighted. On November 10, 1972, the City Planning Commission certified the area in question as blighted and certified it as a redevelopment area as defined in Section 3(n) of the Urban Redevelopment Law,¹ 35 P.S. § 1703(n). A designation of blighted will result when the conditions of blight are found, i.e., unsafe, unsanitary and inadequate housing conditions, excessive building coverage, defective design and arrangements of buildings, faulty street and lot layout, and economically and socially undesirable land uses, transient population, and absentee ownership. Additional studies were done, and the findings set forth in the "Extension to Crawford-Roberts— Certified Area Basic Conditions Report" in November 1997 designated an even wider area as blighted. The City Planning Commission prepared a redevelopment plan, and the Authority prepared a redevelopment proposal for the Project and the extension area (the Proposal).

The Proposal recommends that churches and homeowners who have occupied their properties within the last 180 days and whose properties are listed to be acquired will be exempt from acquisition. The Proposal was approved by the Authority Board on June 10, 1999 and by the City Planning Commission on June 15, 1999, whereupon it was submitted to City Council. City Council made the proposal available for public review and held a public hearing. Following that period, on March 21, 2000, the proposal was approved by City Council.

In August 1992, the Arringtons purchased the subject property with loans from the Authority. As a condition of the loans, the Arringtons promised to maintain the property as their principal residence during the course of the loans. However, in January 1998 the Arringtons relocated to Georgia. The Arringtons refused the Authority's offer to buy back the property. The Arringtons' property is located within the extended blight area defined in the November 1997 report. Since the Arringtons' property was non-owner occupied and within the extended blight area, a declaration of taking was filed and secured by a bond. The Arringtons filed preliminary objections to the declaration of taking, asserting that their property was not blighted, that the Authority had no authority to condemn the property, that they had been denied equal protection because of the exemption of certain owner-occupied premises, that the property was being taken for private purposes, that they had been denied due process, and that the bond was insufficient. After submission of deposition testimony and exhibits, the common pleas court overruled the preliminary objections. The court found that the City Planning Commission had acted in good faith in certifying the project area as blighted and that the Authority, in exercising the right of eminent domain in relation to the Arringtons' property, had acted in good faith and followed proper statutory procedures. The Arringtons (Condemnees) have appealed that ruling to this Court.

Our scope of review is limited to a determination of whether the trial court's decision evidences an abuse of discretion or an error of law. In re Condemnation by the Urban Redevelopment Authority, 117 Pa.Cmwlth. 475, 544 A.2d 87 (1988), affirmed527 Pa. 550, 594 A.2d 1375 (1991). The power of discretion over what areas are to be considered blighted is solely within the power of the Authority. The only function of the courts in this matter is to see that the Authority has not acted in bad faith; to see that the Authority has not acted arbitrarily; to see that the Authority has followed the statutory procedures in making its determination; and finally, to see that the actions of the Authority do not violate any of our constitutional safeguards. Id. at 89 (citations omitted.) An Authority's exercise of its discretion should not be disturbed "in the absence of fraud or palpable bad faith." Oliver v. Clairton, 374 Pa. 333, 340, 98 A.2d 47, 51 (1953). The six issues asserted by Condemnees are challenges to the trial court's findings that the Authority did not act arbitrarily or in bad faith, and to the finding that the taking was constitutionally sound.

We find no merit to the Arringtons' initial contention that the trial court erred in finding that the Arringtons failed to provide factual support for the contention that their property is not currently blighted. Intertwined in this argument, is the Arringtons argument that excluding owner-occupied residences from condemnation violates equal protection rights. A finding that a specific property is blighted is not necessary to support a condemnation proceeding if the property lies within a blighted area. Here, the evidence of record supports the conclusion that the designated area was blighted, and all agree that the property at issue lies within the perimeter of the blighted area. Therefore, a challenge to the taking on this issue has no merit. Crawford v. Redevelopment Authority of Fayette County, 418 Pa. 549, 211 A.2d 866 (1965); Leo Realty Company v. Redevelopment Authority of the City of Wilkes-Barre, 13 Pa.Cmwlth. 288, 320 A.2d 149, 151 (1974).

The mere challenge to the Authority's exclusion of owner-occupied residences from condemnation is an attack on the Authority's certification of blight, which certification the Arringtons did not challenge. Furthermore, the record here reflects that absentee ownership and transient population generally leads to more degraded properties and that owner-occupied properties and churches would help in establishing stability in the area. There is no evidence of involvement of a suspect class or sensitive classification; there is a rational basis for the distinctions, therefore, the challenge that the certification of blight violates equal protection rights is found without merit since there is evidentiary support for the distinction.

Lastly, the Arringtons contend that condemnation was for a private purpose and not a public purpose because the property will be used for private residential development. However, the evidence of record is that the property will be used to eliminate blight and to create a tract of land that can be further development for residential use. The evidence establishes that the property is being taken for a proper public purpose; therefore, it may be permitted to revert to private ownership when the public purpose is discharged. White v. Redevelopment Authority of County of Washington, 147 Pa.Cmwlth. 175, 607 A.2d 314 (1992); In re: Condemnation by the Redevelopment Authority of the City of Harrisburg, 30 Pa.Cmwlth. 273, 373 A.2d 774, 776 (1977).

Accordingly, the order of the Court of Common Pleas of Allegheny County overruling the preliminary objections of Terrance and Rhonda Arrington is affirmed.

Judge McGINLEY did not participate in the decision of this matter.

ORDER

AND NOW, this 24th day of April 2003, the order of the Court of Common Pleas of Allegheny County is AFFIRMED.

DISSENTING OPINION BY Judge PELLEGRINI.

I respectfully dissent from the majority opinion because, for the first time, it holds that a property can be taken based on who owns the property rather than on the condition of the property or the necessity of the taking to carry out the redevelopment plan. Under the Urban Redevelopment Law,² the ownership status of the property is not a criterion for condemning a property because it is not rationally related to carrying out the redevelopment of an area. Because of the majority's holding, whether a house in tip-top shape is going to be condemned while a deteriorating, dilapidated, trash-strewn property next door will not, will be determined not on valid planning reasons, but solely on the status of the person who owns it, and removing people, not curing blight, is now permissible.

In August 1992, Terrance Arrington and his wife, Rhonda L. Arrington (the Arringtons), purchased property at 1819 Webster Avenue in Pittsburgh,...