Middletown Tp. v. Lands of Stone

• Decision Date: 27 December 2007
• Docket Number: No. 64 MAP 2006.,64 MAP 2006.
• Citation: 939 A.2d 331
• Parties: MIDDLETOWN TOWNSHIP v. The LANDS OF Josef Seegar STONE, Executor of the Estate of Sara Seegar Stone, Deceased, Josef Seegar Stone and Francine Lida Stone, Executors of the Estate of Ezra C. Stone, a/k/a Ezra Stone, Deceased, and Josef S. Stone and Francine Lida Stone Appeal of Josef Seegar Stone.
• Court: Pennsylvania Supreme Court

939 A.2d 331

MIDDLETOWN TOWNSHIP v. The LANDS OF Josef Seegar STONE, Executor of the Estate of Sara Seegar Stone, Deceased, Josef Seegar Stone and Francine Lida Stone, Executors of the Estate of Ezra C. Stone, a/k/a Ezra Stone, Deceased, and Josef S. Stone and Francine Lida Stone Appeal of Josef Seegar Stone.

No. 64 MAP 2006.

Supreme Court of Pennsylvania.

Argued October 17, 2006.

Decided December 27, 2007.

Don F. Marshall, Esq., Nichole A. Blaschak, Esq., Stuckert & Yates, Newton, for Josef Seegar Stone.

David F. Conn, Esq., Edward Rudolph, Esq., Rudolph, Pizzo & Clarke, L.L.C., Trevose, for Middletown Township.

John Frazier Hunt, Esq., Hunt & Ayres, L.L.P., Philadelphia, for Estate of Ezra C. Stone.

BEFORE: CAPPY, C.J., and CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER and BALDWIN, JJ.

MAJORITY OPINION

Chief Justice CAPPY.¹

At issue in this matter is whether Middletown Township, a township of the second class, properly exercised the power of eminent domain in taking the Stone farm to provide public recreational space under the Second Class Township Code, 23 P.S. § 67201, when the Open Space Lands Act, 32 P.S. § 5008, prohibits second-class townships from exercising eminent domain in order to preserve open space. For the reasons that follow, we conclude that a second-class township has the authority to condemn property under the Township Code, for any legitimate recreational purpose, despite the fact that the Lands Act does not extend the authority to take for open space purposes. However, we further conclude that the record evidence in this case does not support the conclusion of the trial court that the fundamental purpose behind the Township's taking was recreation, and therefore, the taking is invalid. Accordingly, the order of the Commonwealth Court is reversed.

The property at issue in this litigation is a 175-acre farm in Bucks County owned by the Stone family. The farm was partitioned by stipulated order in 1998 into four parcels. On September 12, 2000 the Middletown Board of Supervisors held a public meeting at which they considered a request to approve a preliminary plan of major subdivision. The chairman of the board, Mel Kardos, expressed his concern that the smallest parcel would be developed. The Supervisors discussed this concern and finally decided to table action on the partition until they could set up a meeting with the owners of the farm to discuss the possibility of acquiring the land to prevent any development. Two weeks later, on September 26, 2000 another public meeting was held. Kardos motioned to authorize the Township to condemn the entire farm, as if it had never been partitioned, and the Board approved this motion. The Township then passed a resolution and filed a declaration of taking citing its authority under the Township Code at 53 P.S. § 65101 et seq., "to acquire a fee simple interest to the [farm] for recreation and open space purposes." (Declaration of Taking). The next day Kardos spoke to the Bucks County Courier Times. Kardos stated that the Township wanted to acquire the farm to preserve it as open space, "We don't want to kick Joe Stone off the farm or anything like that. If we're successful in acquiring the farm, he can keep doing whatever he is doing on it. We just don't want it to go to developers." (Exhibit 10 of the Deposition of Mel Kardos).

On November 8, 2000 Joseph Seegar Stone filed preliminary objections to the declaration of taking arguing, inter alia, that the Lands Act prohibited the Township from taking the farm for the purpose of preserving open space and preventing development, as the Lands Act states that "local government units other than counties or county authorities may not exercise the power of eminent domain in carrying out the provision of this act." 32 P.S. § 5008(b). Stone argued that the Township's action was not redeemed by the fact that the Township Code permits a second-class township to exercise the power of eminent domain for recreational purposes. 53 P.S. § 67201.

In making a determination on the preliminary objections, the trial court relied on the record, in lieu of a hearing, which included depositions taken in August 2002. See 26 Pa.C.S. § 306(a)(3) and (f)(2). Ultimately, the trial court held that the General Assembly granted the Township the legal authority to acquire land through the exercise of the right of eminent domain for recreational purposes. 53 P.S. § 67201. The trial court then found that the purpose of the condemnation was for recreational uses by concluding that:

(1) The long-range goal of the Township's Recreation, Parks and Open Space Plan was to acquire the Stone property, along with other properties for recreational purposes.

(2) The Township has no specific plan for the Stone Farm, but had considered various options which include:

(a) Allowing Mr. Stone to continue to farm a portion of the land;

(b) Developing recreational uses for the remainder providing passive recreation;

(c) Re-instituting the Celebration of Lights ceremony.

(3) Although the condemnation of the property for the intended recreational purposes may have the inevitable consequence of preservation, [of open space by preventing development] this does not invalidate the taking.

Middletown Township v. The Lands of Josef S. Stone, No. 00-06119-25-6, slip op. at 5-6 (C.P.Pa. Dec. 3, 2004). Accordingly, the trial court overruled Stone's preliminary objections to the declaration of taking.

On appeal to the Commonwealth Court, taken as a matter of right pursuant to Pa.R.A.P. 311(e), Stone again argued that the Township exceeded its statutory authority by condemning the farm under the guise of recreational purposes when the true purpose was to prevent development and conserve open space. First, the Commonwealth Court noted that under Pennsylvania law, a public park is a proper recreational use, and that the evidence supported the finding of the trial court that the Township condemned the farm for recreational uses. Middletown Township v. The Lands of Josef S. Stone, 882 A.2d 1066, 1072 (Pa.Cmwlth.2005). The court specifically observed that two witnesses testified to the use of the farm as an extension of an existing public park, and that the use of the farm for future recreational uses was part of an established long-term plan.² Id. Further, the Commonwealth Court found that the fact that the declaration of taking specifically stated that one purpose for the taking was to conserve open space was irrelevant. Id. The court noted that the Open Space Lands Act merely forbids the Township from exercising eminent domain "in carrying out the provisions of this act," and the Township did not purport to act under authority of the Lands Act, but rather, purported to take under the Township Code, which expressly grants that power for recreational purposes. Id. at 1072-73. As the declaration of taking also cited to recreational purposes authorized under the Township Code, the Commonwealth Court determined that the restriction under the Lands Act did not apply, and affirmed the trial court's decision to overrule the preliminary objections. Id.

Then-President Judge Colins filed a dissenting opinion asserting that the totality of the record made it overwhelmingly apparent that the Township's purpose was to create open space to preserve property values and enhance the aesthetic livability of the Township. Id. at 1076. He noted that this purpose is not authorized under the Township Code or the Open Space Lands Act, and would invalidate the taking. Id. He also emphasized that the Township specifically stated that the taking was to "acquire recreational and open space." Id. at 1075. Judge Colins then contended that the admission on the face of the declaration of taking that one of the purposes for condemnation was for the creation of open space put the Township in violation of the Lands Acts which specifically prohibits a Township from condemning for that purpose. Id. Judge Colins concluded by stating, "The fact that the taking is only partially illegal cannot be bootstrapped into a lawful taking." Id.

In our limited grant we asked whether the Commonwealth Court erred in affirming the Court of Common Pleas in overruling the preliminary objections to the declaration of taking.³ We also asked the parties to discuss whether the Open Space Lands Act imposes any limitations on the exercise of eminent domain by second-class townships.⁴ First we will set forth the pertinent language of the Township Code and the Open Space Lands Act, then we will consider the arguments of the parties before addressing the issues before us.

The Township Code states:

§ 67201. Acquisition of lands and buildings

The board of supervisors may designate lands or buildings owned, leased or controlled by the township for use as parks, playgrounds, playfields, gymnasiums, swimming pools, indoor recreation centers, public parks and other recreation areas and facilities and acquire lands or buildings by lease, gift, devise, purchase or by the exercise of the right of eminent domain for recreational purposes and construct and equip facilities for recreational purposes.

53 P.S. § 67201 (emphasis added). The Lands Act allows a local government unit to acquire any interest in real property situated within its boundaries by condemnation for any one of a host of purposes related to the conservation of land including efficient development, recreation and the preservation of open space. See 32 P.S. § 5005. The Lands Act does provide the following restrictions, however:

§ 5008. Exercise of eminent domain

(b) Notwithstanding the provisions of subsection (a) or section 5(c), local government units other than counties or county authorities may not exercise the power of eminent domain in carrying out the provisions of this act.

32 P.S. § 5008(b).

Stone argues that the Township did not have the authority to take the farm, even though it ostensibly premised the taking on authority of the Township...