In re S.E. Cent. Bus. Dist. Redevel. Area

• Decision Date: 22 April 2008
• Docket Number: No. 651 C.D. 2007.,651 C.D. 2007.
• Citation: In re S.E. Cent. Bus. Dist. Redevel. Area, 946 A.2d 1154 (Pa. Commw. Ct. 2008)
• Parties: In re CONDEMNATION OF LAND FOR the SOUTH EAST CENTRAL BUSINESS DISTRICT REDEVELOPMENT AREA #1: (405 MADISON STREET, CITY OF CHESTER) Appeal of Earnestine O. Brown.
• Court: Pennsylvania Commonwealth Court

946 A.2d 1154 (Pa. Commw. Ct. 2008)

In re CONDEMNATION OF LAND FOR the SOUTH EAST CENTRAL BUSINESS DISTRICT REDEVELOPMENT AREA #1: (405 MADISON STREET, CITY OF CHESTER)Appeal of Earnestine O. Brown.

No. 651 C.D. 2007.

Commonwealth Court of Pennsylvania.

Submitted on Briefs March 12, 2008.

Decided April 22, 2008.

Earnestine O. Brown, appellant, pro se.

Louis M. Kodumal and Paul J. Toner, Media, for appellee.

BEFORE: LEADBETTER, President Judge, and SMITH-RIBNER, Judge, PELLEGRINI, Judge, FRIEDMAN, Judge, COHNJUBELIRER, Judge, SIMPSON, Judge, and LEAVITT, Judge.

OPINION BY Judge FRIEDMAN.

Earnestine O. Brown(Brown) appeals from the December 13, 2006, order of the Court of Common Pleas of Delaware County(trial court), which overruled Brown's preliminary objections to the Declaration of Taking (Declaration) filed by the Redevelopment Authority (Authority) of the City of Chester(City) under the former Eminent Domain Code (Code).¹We affirm.

Brown owns the property located at 405Madison Street in the City (the Property).The Property is within the South East Central Business Redevelopment Area #1 (Redevelopment Area), which the City Planning Commission certified as blighted on April 14, 2004.

On May 12, 2004, the Authority approved an Agreement of Sale and Redevelopment Agreement (Agreement) with Vahan Gureghian for the purchase and redevelopment of the Property for charter school purposes, contingent upon approval by City Council.²On August 11, 2004, the Authority approved a Redevelopment Plan Proposal (Plan) providing for educational uses and related facilities in the Redevelopment Area.On February 9, 2005, City Council approved the Agreement and the Plan.On July 6, 2005, the Authority and Gureghian executed the Agreement, and, on July 14, 2005, the Authority filed its Declaration.(Trial ct. op.at 1, 3;R.R.at 18a-19a, 57a, 66a.)

Brown filed preliminary objections to the Declaration with the trial court, asserting that: (1) the taking was "in favor of a private developer," contrary to Alabama law, although Alabama law conflicts with federal law;³(2) the current state of eminent domain law is so unsettled that Brown's rights and responsibilities are "uncertain and unprotected by law";⁴ and (3) the acquisition of the Property for educational buildings will not be beneficial to the public because the existing educational buildings "have been constructed with such inferior materials and workmanship that the ... life span of [the] institution ... will [not exceed] five (5) years."⁵(R.R.at 24a.)After a hearing on the matter, the trial court overruled the preliminary objections.Brown now appeals to this court.⁶

I.Evidentiary Rulings on Contracts

Brown first argues that the trial court abused its discretion by refusing to allow Brown to examine witnesses and to present relevant evidence regarding the Agreement and regarding a contract between Brown and Gureghian.The Authority contends that Brown has waived this issue because, in her brief, Brown does not identify any specific evidentiary rulings of the trial court or provide any citation to the record.We agree with the Authority.

Each part of the argument in a brief must contain the particular point being treated, followed by such discussion and citation of authorities as are deemed pertinent.Pa. R.A.P. 2119(a).Arguments not properly developed in a brief will be deemed waived.Rapid Pallet v. Unemployment Compensation Board of Review,707 A.2d 636(Pa.Cmwlth.1998).Moreover, the statement of the case and/or argument portion of a brief must contain a "specific reference to the places in the record" where the ruling, or exception thereto, appears in order to show that the question before the court was timely and properly raised below so as to preserve the question on appeal.Pa. R.A.P. 2117(c);Pa.R.A.P. 2119(e).

Here, Brown merely lists her witnesses and states that the trial court ruled irrelevant their testimony about the Agreement and a contract between Brown and Gureghian.Brown does not discuss the details or circumstances of her contract with Gureghian; she does not indicate what each witness's testimony would have been regarding the Agreement and the other contract; and she does not present an argument as to why testimony about the Agreement and the other contract would have been relevant to the issues she raised in her preliminary objections.Moreover, to show the place of each trial court ruling, or exception thereto, Brown simply cites to "pages 6-124" of the hearing transcript.(Brown's briefat 12.)Such a citation does not constitute a "specific reference" to the places in the record where the rulings or exceptions appear.⁷

Absent proffered testimony to review or properly developed arguments to consider, we are unable to perform appellate review of the trial court's rulings.Thus, Brown's first argument is deemed waived.

II.Evidentiary Rulings on Delegation

Brown next argues that the trial court abused its discretion in refusing to allow Brown to present relevant evidence to prove that the Authority improperly delegated its eminent domain powers to Gureghian through the Agreement.However, in her brief, Brown does not indicate what relevant evidence she would have presented as proof of improper delegation, and she does not identify any specific ruling by the trial court in this regard.Absent some knowledge of the excluded evidence and an argument to consider, we are unable to perform appellate review of the trial court's rulings.Thus, Brown's second argument is deemed waived.⁸

III.Evidentiary Rulings on Private Benefit

Finally, Brown argues that the trial court abused its discretion in refusing to allow Brown to present relevant evidence showing that the Authority took the Property for the private benefit of Gureghian.However, in her brief, Brown does not indicate what relevant evidence she would have presented, and she does not identify any specific ruling by the trial court in this regard.Absent some knowledge of the excluded evidence and an argument to consider, we are unable to perform appellate review of the trial court's rulings.Thus, Brown's final argument is deemed waived.⁹

Accordingly, we affirm.

SMITH-RIBNER, J., dissents and files opinion in which COHN JUBELIRER, J., joins.

ORDER

AND NOW, this 22nd day of April, 2008, the order of the Court of Common Pleas of Delaware County, dated December 13, 2006, is hereby affirmed.

Dissenting Opinion by Judge SMITH-RIBNER.

I respectfully must disagree with the decision of the majority to affirm the order of the Delaware County Court of Common Pleas, which overruled the preliminary objections filed by Earnestine O. Brown(Brown) to the declaration of taking filed by the Redevelopment Authority (Authority) of the City of Chester(City) in regard to Brown's improved property at 405Madison Street in the City.As the majority notes, on May 12, 2004 the Authority approved an agreement of sale and a redevelopment agreement with Vahan Gureghian(Gureghian) for Gureghian to purchase the property for charter school purposes.David Sciocchetti, Executive Director of the Authority, admitted in his testimony that the Authority entered into an agreement with Gureghian rather than the Charter School because "[t]he charter school didn't approach us to enter into an agreement.Mr. Gureghian did."N.T. 172-173; Reproduced Record (R.R.) 295a-296a.Gureghian testified that he is "nothing more than a landlord to the charter school."N.T. 83;R.R. 206a.He further testified that he rents the parcels for the School, with up to thirty parcels included under one agreement with the Authority and some others not subject to its control.N.T. 90-91;R.R. 213a-214a.He stated that he did not know the gross amount that he receives for renting the parcels.N.T. 91;R.R. 214a.

I

The City's Planning Commission completed a study known as the "Redevelopment Area Plan for South East Central Business District Area #1" in March 2004, which determined that the area to which it applied was blighted; Brown's property is in that area.After coming to the May 2004 agreements with Gureghian, the Authority adopted a "Redevelopment Plan Proposal for South East Central Business District Redevelopment Area #1" on June 30, 2004.On August 11, 2004, the Planning Commission amended the redevelopment plan and the Authority amended the redevelopment plan proposal to include use for educational buildings and accessory uses (specifically mentioning charter schools) as a public use provided that the developer secure necessary zoning approvals.

The Authority drafted an Agreement of Sale and a Redevelopment Agreement (Agreement) under which Gureghian assumed responsibility for all costs associated with acquisition of the properties, contingent upon approval of the redevelopment plan proposal by City Council as required by Section 10 of the Urban Redevelopment Law, Act of May 24, 1945, P.L. 991, as amended, 35 P.S. § 1710.City Council approved the redevelopment proposal and the Agreement by resolution on February 9, 2005.On July 6, 2005the parties executed the Agreement, and the Authority filed its declaration of taking on July 14, 2005.

Brown, proceeding in her own behalf, filed preliminary objections.The first, although making a reference to law of the State of Alabama, questioned whether the condemnation and exercise of eminent domain in favor of a private developer created a conflict between state and federal law, citing Kelo v. City of New London,545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439(2005).The second questioned whether the current state of the law was so unsettled that the rights and responsibilities of the private property owner were uncertain and unprotected by law.The third stated that acquisition of Brown's property for the purpose of transfer to Gureghian for inclusion with educational buildings would not in fact be beneficial and in the public interest because the already erected...