In re Redevelopment Auth. of Philadelphia

• Decision Date: 06 February 2006
• Citation: 891 A.2d 820
• Parties: A Condemnation Proceeding In Rem by the REDEVELOPMENT AUTHORITY OF the CITY OF PHILADELPHIA for the purpose of Redevelopment of North Philadelphia Redevelopment Area Model Cities Urban Renewal Area Condemnation No. 30 B Philadelphia, PA including certain land improvements and properties. Re 1839 North Eight Street. Appeal of Mary Smith.
• Court: Pennsylvania Commonwealth Court

891 A.2d 820

A Condemnation Proceeding In Rem by the REDEVELOPMENT AUTHORITY OF the CITY OF PHILADELPHIA for the purpose of Redevelopment of North Philadelphia Redevelopment Area Model Cities Urban Renewal Area Condemnation No. 30 B Philadelphia, PA including certain land improvements and properties.

Re 1839 North Eight Street.

Appeal of Mary Smith.

Commonwealth Court of Pennsylvania.

Argued November 16, 2005.

Decided February 6, 2006.

COPYRIGHT MATERIAL OMITTED

Robert J. Sugarman, Philadelphia, for appellant.

Peter A. Galante, Philadelphia, for appellee, Redevelopment Authority of the City of Philadelphia.

BEFORE: COLINS, President Judge, SMITH-RIBNER, Judge, PELLEGRINI, Judge, LEADBETTER, Judge, COHN JUBELIRER, Judge, SIMPSON, Judge, and LEAVITT, Judge.

OPINION BY Judge SMITH-RIBNER.

The issue in this case is one of first impression for the Court. The question for the Court to decide is whether the Redevelopment Authority of the City of Philadelphia (Authority) may exercise eminent domain power to condemn a private homeowner's property, located in an area of North Philadelphia that was certified as blighted, and then turn over the acquired property to a purely private religious organization to construct and operate a private independent school.

Mary Smith (Condemnee) appeals from the order of the Court of Common Pleas of Philadelphia County that overruled preliminary objections filed by Condemnee and her Daughter Veronica Smith to the Authority's November 21, 2003 Declaration of Taking that condemned property owned by Condemnee at 1839 North Eighth Street in the City of Philadelphia (Property). Condemnee asserts that the trial court erred in holding that the existence of blight justified the condemnation regardless of the specific developer's purpose for the intended project, in holding that the Property may be taken and given to a religious organization and in failing to recognize that Condemnee's Daughter shared an ownership interest in the Property and was due relocation costs.

I

In February 2004 the trial court ordered that evidence in the case be taken by deposition and that counsel were to submit the notes of testimony and any supplemental memoranda for the court to consider before reaching its decision. The record establishes that Condemnee owns the Property but currently resides in a nursing home and that her Daughter has resided in the Property for over 50 years and presently resides there with her family. On September 4, 2002, the "Hope Partnership for Education" submitted by letter to the Authority's Director of Urban Renewal Activities, Michael Koonce, specific documents pertaining to the prior request for the Authority to acquire specific land targeted by the Hope Partnership in eastern North Philadelphia. See Reproduced Record (R.R.) at 42a-44a.

The Hope Partnership proposed to build a private independent middle school in a blighted neighborhood, and it described the venture in its project narrative submitted to the Authority as being between "Two Communities of religious sisters, the Society of the Holy Child Jesus and the Sisters of Mercy...." R.R. at 43a. It further explained that "[t]his collaborative venture is being built on the long established Holy Child and Mercy traditions of service ... [and][a]s vowed religious, we are called to journey with those in need...." Id. The private school will operate through foundation, business and private funding. Id.

On October 20, 2002, after receiving the City Planning Commission's November 26, 1968 blight certification for the North Philadelphia Redevelopment Area, the Authority prepared its redevelopment proposal titled "The Thirtieth Amended Redevelopment Proposal" for submission to the Planning Commission. See Supplemental Reproduced Record (S.R.R.) at 30b, 64b; Ex. 2 at 85b. The proposal's Fact Sheet lists the development projects, which includes the Hope Partnership project identified as the "North Franklin/North 8th Street Landbank (Hope Partnership for Education)." R.R., Ex. A at 25a; S.R.R. at 89b. The area is bounded by North 8th Street to the west, North Franklin Street to the east, Berks Street to the north and Montgomery Avenue to the south. Id. The Hope Partnership is one of the entities for which the Authority will make land acquisition through the City's Neighborhood Transformation Initiative; the land will be given to it for a nominal price. R.R., Ex. A at 25a, 68a-69a (Deposition of M. Koonce).

By letter dated October 18, 2002, the Planning Commission approved the proposal, which the Authority then submitted to City Council. S.R.R. at 31b. After a public hearing December 9, 2002, City Council passed Ordinance No. 020681 on December 19 approving acquisition, inter alia, of the 39 designated properties for the Hope Partnership project. R.R., Ex. A at 25a; S.R.R. at 32b, 114b. The proposed acquisition cost was $860,250, and the developer was identified as the Hope Partnership. R.R., Ex. B at 30a. On August 21, 2003, after previously notifying Condemnee that her Property would be appraised, the Authority offered Condemnee $12,000 as estimated just compensation, S.R.R. at 121b; on November 6, 2003, the Hope Partnership wrote Condemnee advising her about plans to acquire the land at 8th and Berks and of the Authority's plan to negotiate relocation; and on November 21, 2003, the Authority initiated the taking.

Condemnee filed preliminary objections on December 23, 2003. She averred, among other things, that her Daughter owns an equitable interest in the Property and is the prime tenant residing there, that the Authority's taking was not for a public purpose, that the taking is arbitrary and capricious and is discriminatory, that the taking is the result of a predetermined illegal commitment to a private entity, that Condemnee's due process rights were violated and that the taking was made without due compensation to Condemnee's Daughter because the Authority refused to recognize her ownership interest.

The trial court overruled the preliminary objections based upon its ultimate conclusion that "[o]nce the land was certified as blighted, it is proper to then transfer the land to private development, regardless of `who' that future developer may be." Slip op. at 3. Relying upon Belovsky v. Redevelopment Authority of Philadelphia, 357 Pa. 329, 54 A.2d 277 (1947), the trial court determined that the elimination of blighted areas constitutes a proper public purpose for which the Authority may use its power of eminent domain. See Section 2(d) of the Urban Redevelopment Law, Act of May 24, 1945, P.L. 991, as amended, 35 P.S. § 1702(d). It noted that Condemnee did not challenge the certification of blight, which occurred some 35 years before the condemnation and it quoted the propositions from Belovsky that a taking does not lose its public character simply because some future private gain may result and that if the public good is enhanced it is irrelevant that a private interest may benefit from the taking. The court flatly rejected the argument that the taking implicates an impermissible entanglement of church and state. It stated only that the taking was due to sub-standard and blighted conditions of the Property and that the taking was authorized by Sections 9 and 12 of the Urban Redevelopment Law, 35 P.S. §§ 1709 and 1712.

The trial court concluded that because no deed exists to pass title from Condemnee to the Daughter, she possesses only a tenancy at will and may be regarded as a displaced person entitled to specific damages. Relying on Section 201(8)(i)(A)(I) of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-201(8)(i)(A)(I), and Urban Redevelopment Authority of Pittsburgh v. Cleban, 216 Pa.Super. 269, 264 A.2d 187 (1970), the court offered that the Daughter may be entitled to certain damages when she relocates and submits documentation for the Authority to determine relocation costs due.

II

A

The Court's review of a trial court's decision to sustain or to overrule preliminary objections to a Declaration of Taking in an eminent domain case is limited to determining whether the trial court abused its discretion or whether it committed an error of law. In re Condemnation of Land in Robinson, 861 A.2d 387 (Pa. Cmwlth.2004). When reviewing condemnation cases under the Urban Redevelopment Law, the Court must ascertain that the redevelopment authority has not acted in bad faith or acted arbitrarily, that it has followed required statutory procedures in preparing a redevelopment plan and that there were no constitutional violations. See In re Condemnation of 110 Washington Street, 767 A.2d 1154 (Pa.Cmwlth. 2001). In addition, in Redevelopment Authority of Erie v. Owners or Parties in Interest, 1 Pa.Cmwlth. 378, 274 A.2d 244 (1971), this Court acknowledged its limitations on appellate review of a trial court decision to sustain or to overrule preliminary objections. It stated that "[w]ith respect to inferences and deductions from facts and conclusions of law, both the court en banc and the appellate courts have the power to draw their own inferences and make their own deductions and conclusions." Id., 274 A.2d at 253 (citing Felt v. Hope, 416 Pa. 118, 206 A.2d 621 (1964); Kalyvas v. Kalyvas, 371 Pa. 371, 89 A.2d 819 (1952)).

Preliminary objections filed pursuant to Section 406(a) of the Eminent Domain Code, 26 P.S. § 1-406(a), serve a different function than those filed in other civil actions. In re Stormwater Mgmt. Easements, 829 A.2d 1235 (Pa.Cmwlth. 2003). They are the exclusive method for resolving challenges to the power or right of the condemnor to appropriate the condemned property unless previously adjudicated, the sufficiency of the security, any other procedures followed by the condemnor or the declaration of taking. Id. They are intended to serve as a mechanism for the expeditious resolution of factual and legal challenges to a Declaration of Taking before the...