In re Condemnation the Prop. of Matthew J. Zeigler
| Decision Date | 27 January 2014 |
| Docket Number | No. 2013 C.D. 2012,2013 C.D. 2012 |
| Court | Pennsylvania Commonwealth Court |
| Parties | In The Matter of: The Condemnation of the Property of Matthew J. Zeigler and Christine G. Zeigler Appeal of: Matthew J. Zeigler and Christine G. Zeigler |
In The Matter of: The Condemnation
of the Property of Matthew J. Zeigler and Christine G. Zeigler
Appeal of: Matthew J. Zeigler and Christine G. Zeigler
No. 2013 C.D. 2012
COMMONWEALTH COURT OF PENNSYLVANIA
Argued: December 11, 2013
January 27, 2014
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this eminent domain proceeding, Matthew J. Zeigler and Christine G. Zeigler (Condemnees) appeal from an order of the Court of Common Pleas of Lycoming County (trial court)1 that overruled their preliminary objections to a declaration of taking filed by Hepburn Township (Township). The Township condemned a portion of Condemnees' property, located in an area known as Smokey Corners, for the construction and location of public sewage collection line, for approximately eight to ten on-lot stream discharge systems. Condemnees contend the trial court's order should be vacated or reversed, and this case remanded for the taking of discovery or an evidentiary hearing on several factual issues. For the reasons that follow, we affirm.
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In their preliminary objections to the declaration of taking, Condemnees asserted as follows. The Township knew about the sewage problems in the area for at least a decade. Several properties in the area experienced problems with their on-site sewer systems, which malfunctioned and overflowed into a runoff stream, and then into a pond on Condemnees' property. Condemnees further alleged the Township did nothing about this problem until a private contractor and former Township Supervisor, Rand Lepley (Contractor), expressed a desire to develop homes on neighboring properties.
In February 2012, Robert Fesemyer (Supervisor Fesemyer), Chairman of the Township's Board of Supervisors (Supervisors), contacted Condemnee Matthew Zeigler at his law office and asked if they could meet and discuss the issues surrounding the potential condemnation of Condemnees' property. Zeigler agreed, and they scheduled a meeting at the Township's Fire Hall for February 27, 2012 at 7:30 p.m. Condemnees arrived at that time and found the door locked and no one present. Supervisor Fesemyer got out of a nearby car and introduced himself. He informed Condemnees that Supervisors were there to talk to them, but that the others already left.
Supervisor Fesemyer called the other Supervisors back. Condemnees and Supervisors went into the Fire Hall and discussed the condemnation issue. Condemnees asked Supervisor Fesemyer if this violated the Sunshine Act2 (Pennsylvania's open meetings law). He responded that he spoke with the
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Township's solicitor, Denise L. Dieter (Solicitor), who advised him it did not. According to Condemnees, Supervisors asked them to draft a settlement agreement reflecting their discussion.
Condemnees drafted a proposed agreement and emailed it to Supervisors. Thereafter, Condemnees received no response. They twice emailed Supervisors to determine the status of the proposed agreement.
Three months later, in June 2012, the Township filed a declaration of taking, and a notice of taking, for 3,841 square feet of Condemnees' property for a permanent utility easement, and 3,927 square feet for a temporary construction easement. See Reproduced Record (R.R.) at 2-16. Paragraph No. 8 of the declaration estimated just compensation for the taking at "no more than $1,100.00." R.R. at 3.
In response, Condemnees filed preliminary objections alleging: violations of the Sunshine Act; taking for a private purpose or use; failure to conduct an adequate investigation; and, failure to adequately describe the nature of the taking.
The Township filed an answer to Condemnees' preliminary objections denying their material allegations. In particular, the Township averred it spent a lot of time over the years on extensive and expensive planning to resolve the Smokey Corners sewage problems. To that end, the Township, in conjunction with
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the Department of Environmental Protection (DEP), addressed these problems in an "Act 537"3 Sewage Facilities Plan Update (Act 537 Plan Update).
The Township also denied Contractor caused any increase in those efforts. To that end, the Township stated in its answer that Contractor did successfully develop 11 residential lots "with no need for a public project." Township's Answer at ¶66; R.R. at 40. In short, the Township claimed the purpose of the condemnation is to prevent pollution from several existing residential properties in the Township in accord with the Act 537 Plan Update, not to aid Contractor with undeveloped land.
The Township further denied the proposed sewer system is entirely on Condemnees' property. Rather, it involved several neighboring properties. Moreover, the system is not limited to serving four residences. To the contrary, it has a capacity for eight to ten users.
In addition, the Township denied it reached a settlement agreement with Condemnees at the February 2012 meeting. Rather, the Township asked Condemnees to draft a proposed settlement agreement. Condemnees proposed that the Township dredge their pond and install a sewage treatment system for them. The Township claimed those costs far exceeded the estimated just compensation for the taking of $1,100.
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Notably, in the motion sheet attached to Condemnees' preliminary objections, they did not request an evidentiary hearing. See R.R. at 17. Rather, they only requested a "court conference" and "rule to show cause." Id.
After the filing of the Township's answer, the trial court issued a briefing schedule and set a date for oral argument. R.R. at 55. Following oral argument, the trial court overruled Condemnees' objections. Id. at 56. Condemnees timely filed a notice of appeal. Id. at 57.
In an opinion in support of its order, the trial court boiled down Condemnees' preliminary objections into the following four issues:
1. Whether the Township violated the Sunshine Act in violation of Condemnees' pre-condemnation constitutional rights.
2. Whether the Township inaccurately described the land in the declaration of taking.
3. Whether the taking was reasonable in scope in light of the sewage disposal problems cited as the reason for the taking.
4. Whether the Township established a public purpose for the taking.
See Tr. Ct., Slip. Op., 5/29/13, at 2; R.R. at 63.
With regard to the Sunshine Act, the trial court noted the Township adopted a resolution at an April 2012 public meeting authorizing the declaration of taking. Further, a challenge to a condemnor's power and right to condemn
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property cannot be based on a violation of the Sunshine Act. In re Condemnation of Real Estate by Borough of Ashland, 851 A.2d 992 (Pa. Cmwlth. 2004).
The trial court also determined the attachments filed with the notice of taking adequately described the condemned permanent easement. The attachments included a description of the permanent utility easement, a description of the temporary construction easement, and a plat indicating the location of the easements on Condemnees' property. See Notice of Declaration of Taking at Exs. A-C; R.R. at 14-16. A written description or plan showing the property condemned is adequate to give Condemnees sufficient notice of that portion of their property to be taken. Milford Traumbauersville Area Sewer Auth. v. Approximately 0.753 Acres of Land (Appeal of McCarthy), 358 A.2d 450 (Pa. Cmwlth. 1976).
Similarly, the court found the Township's taking to be reasonable in scope to abate the pollution problem in the area. The trial court also rejected the argument that the taking benefitted a private use rather than a public use.
On appeal,4 Condemnees contend the trial court's order should be reversed and this case remanded for the taking of discovery or an evidentiary
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hearing. They assert the power of eminent domain is not an unrestrained power. Rather, the United States and Pennsylvania Constitutions provide that private property may only be taken for public use subject to payment of just compensation. A taking will have a public purpose only when the public is to be the primary and paramount beneficiary of the exercise of eminent domain power. In re Forrester, 575 Pa. 365, 836 A.2d 102 (2003). In addition, a condemnor's decision to condemn cannot be arbitrary or capricious, or an abuse of discretion. Middletown Twp. v. Lands of Stone, 595 Pa. 607, 939 A.2d 331 (2007). Further, without a suitable investigation leading to an intelligent, informed judgment by the condemnor, the condemnation is invalid. Downingtown Area Sch. Dist. v. DiFancesco, 557 A.2d 819 (Pa. Cmwlth. 1989). Municipal entities stand in a fiduciary relationship to the public which they were created to serve and their conduct must be guided by good faith and sound judgment. Price v. Phila. Parking Auth....
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