Pidstawski v. South Whitehall Tp.

• Decision Date: 22 December 1977
• Citation: 380 A.2d 1322,33 Pa.Cmwlth. 162
• Parties: In re Condemnation of Tract of Land Consisting of Certain Individually Owned Tracts of Land Lying Along Jordan Creek, East of Wehr Dam's Bridge, South Whitehall Township, Route 1, Allentown, Lehigh County, Pennsylvania, by the Township of South Whitehall for the Purposes of Public Park, Recreation Area and Facilities re Tracts Nos. 5, 6 and 7. Nicholas and Helen S. PIDSTAWSKI et al., Appellants, v. SOUTH WHITEHALL TOWNSHIP.
• Court: Pennsylvania Commonwealth Court

380 A.2d 1322

33 Pa.Cmwlth. 162

In re Condemnation of Tract of Land Consisting of Certain

Individually Owned Tracts of Land Lying Along Jordan Creek, East of Wehr Dam's Bridge, South Whitehall Township, Route 1, Allentown, Lehigh County, Pennsylvania, by the Township of South Whitehall for the Purposes of Public Park, Recreation Area and Facilities re Tracts Nos. 5, 6 and 7. Nicholas and Helen S. PIDSTAWSKI et al., Appellants, v. SOUTH WHITEHALL TOWNSHIP.

Commonwealth Court of Pennsylvania.

December 22, 1977

Argued Oct. 6, 1977.

William C. Wickkiser, James B. Martin Michael J. Piosa, Worth & O'Hara, Allentown, for appellants.

James A. Bartholomew, Butz, Hudders & Tallman, Allentown, for appellee.

Before CRUMLISH, Jr. and WILKINSON, JJ.

OPINION

CRUMLISH Jr., Judge.

This is an appeal by Nicholas and Helen S. Pidstawski, Charles F. and Joan E. Hoffman and LeRoy and Carrie A. Breininger (Condemnees) from an order of the Court of Common Pleas dismissing their preliminary objections to a Declaration of Taking filed by the Township of South Whitehall (Township). The sole issue is whether Condemnees' properties were taken for a public purpose.

In January 1974, Township, pursuant to the authority vested in it by Sections 1901 and 3001 of The First Class Township Code, Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. §§ 56901, 58001, filed a declaration of taking under which it condemned approximately 80 acres of land along the Jordan Creek for what was to be known as the Jordan Creek Parkway Project. The condemned land included 15.120 acres owned by the Hoffmans, 15.890 acres owned by the Pidstawskis, and 17.836 acres owned by the Breiningers. These Condemnees timely filed preliminary objections alleging, inter alia, ^[1] that the declaration did not adequately demonstrate the purpose of and need for the taking. The court below sustained the objection, but allowed the Township time to file a more specific declaration and develop a record in an effort to establish a public use. The Township filed an amended declaration in which it summarized the purpose of the condemnation as follows:

"(a) To acquire land for the establishment of the Township's first community recreation area to serve the present and future recreational needs of the Township community, as indicated in a Township recreation survey conducted on August 16, 1971, and in the comprehensive plan for the Township, dated September, 1969.

"(b) To acquire land for the location of a park area for needed Township recreational facilities, which include a swimming pool, baseball field, handball courts, tennis courts, football field, nature trails, and other open space uses.

"(c) To acquire land within the Township for a park area for the preservation of open space in accordance with the Joint Planning Commission's Regional Comprehensive Plan for Development of Recreational Facilities within Lehigh County.

"(d) To acquire land to be held and used for permanent open-space land for open space and recreational uses as set forth in Pennsylvania's Land and Water Conservation and Reclamation Act of 1968.

"(e) To acquire land within the Township to provide a park area which would preserve the historical, recreational, and natural beauty of the Jordan Creek at the site of the condemned tracts as set forth in Title VII of the United States Housing Act of 1961."

Subsequently, the Township took the depositions of its Secretary and Director of Community Development, its Director of Finance and Personnel, the president of its Board of Commissioners (formerly a member of the Township Planning Commission), the Township Engineer, and a member of its Park and Recreation Board, as well as the executive director of the Lehigh-Northampton Counties Joint Planning Commission and two professional planners. The Condemnees, who cross-examined these witnesses but presented no witnesses of their own, filed exceptions to the Township's certification of filing of the depositions. Following oral argument, the court ruled that the record constituted a sufficient showing of the public purpose of the taking, dismissed the exceptions, and overruled the preliminary objections. The Condemnees then came to us.

In eminent domain cases, our review of lower court decisions is limited to a determination of whether the court abused its discretion or committed an error of law. Breinig v. Hatfield Township, 23 Pa.Cmwlth. 394, 352 A.2d 230 (1976). The lower court is itself limited in its review of the municipality's decision to condemn property and of the extent of the taking, to the question of whether the municipality is guilty of fraud, bad faith, or abuse of discretion. Truitt v. Borough of Ambridge Water Authority, 389 Pa. 429, 133 A.2d 797 (1957). Furthermore, there is a strong presumption that the municipality has acted properly, Nixon Hotel, Inc. v Redevelopment Authority of the City of Butler, 11 Pa.Cmwlth. 519, 315 A.2d 366 (1974), and the burden is heavy upon one attempting to show an abuse of discretion. Pittsburgh School District...