Township of O'Hara v. Condemnation of an Easement and Right of Way for Public Purposes, No. 196 C.D. 2004 (PA 11/4/2004)

• Decision Date: 04 November 2004
• Docket Number: No. 196 C.D. 2004.,196 C.D. 2004.
• Court: Pennsylvania Supreme Court
• Parties: Township of O'Hara v. Condemnation of an Easement and Right of Way for Public Purposes for Use in a Sewer District of a Certain Section of O'Hara Township Designated as "Crawford Lane and Mission Lane Area" in Allegheny County, Pennsylvania, Over Lands of C. Kent and Valerie L. May, Located at Block and Lot No. 358-B-75. Appeal of: C. Kent and Valerie L. May.

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Township of O'Hara v. Condemnation of an Easement and Right of Way for Public Purposes for Use in a Sewer District of a Certain Section of O'Hara Township Designated as "Crawford Lane and Mission Lane Area" in Allegheny County, Pennsylvania, Over Lands of C. Kent and Valerie L. May, Located at Block and Lot No. 358-B-75.

Appeal of: C. Kent and Valerie L. May.

No. 196 C.D. 2004.

Commonwealth Court of Pennsylvania.

Argued: October 5, 2004.

Filed: November 4, 2004.

BEFORE: JUBELIRER, Judge; SIMPSON, Judge; McCLOSKEY, Senior Judge.

OPINION BY JUDGE COHN JUBELIRER

C. Kent and Valerie L. May (Condemnees) appeal an Order of the Court of Common Pleas of Allegheny County overruling their preliminary objections to an Amended Declaration of Taking filed by the Township of O'Hara (Township) for property Condemnees own in Fox Chapel Borough (Borough).¹ Condemnees argue that the trial court erred when it found that the Township has the power and authority to condemn property located outside of its municipal borders.

The Borough abuts the eastern portion of the Township along Crawford Lane. Because of this proximity, beginning in 1968, the Borough and the Fox Chapel Sanitary Authority (Authority) entered into a series of agreements with the Township to provide sewage service to 166 existing and 60 future Township properties,² and the Township agreed to allow the Borough to connect to the Township's sewers to service 3 Borough properties.³ Both the Township and the Borough recently realized that additional properties in both municipalities required sewer service.

Accordingly, the Township enacted Ordinance No. 1103, "in the interest of public health," to establish authority for construction of sanitary sewers that would provide service to areas "separated from the others by physical conditions of the terrain." (Ordinance, R.R. at 124a.) The Ordinance specifically designated the "Crawford Land and Mission Lane Area" as a "sewer district," to "include all necessary lands, easements and rights-of-way used and occupied or required for sewer lines and facilities to provide for the sewer system...." (Ordinance § 103, R.R. at 125a.) Condemnees' property was included among others specifically listed in the Ordinance as "lands and rights-of-way [that] have not been obtained and, therefore, for which the condemnation and eminent domain proceedings . . . will commence to obtain the permanent and temporary easements and rights-of-way ...." (Ordinance § 405; R.R. at 127a.)

Thereafter, the Township and the Borough entered into another agreement (Agreement) permitting the Township to connect to the Borough's sewer by means of the "sewer district" in order to provide sewer service to an additional 26 Township properties and 3 Borough properties. (Agreement, R.R. at 217a.) The Agreement⁴ mandated, inter alia, that the Township and the Borough were to share the costs of construction of the sewer system in proportion to the number of properties serviced in each municipality.⁵ (Agreement, RR. at 218a, ¶ 2.)

The Township subsequently filed a Declaration of Taking and issued a Notice of Condemnation of Property, in which it "condemned the subject property for use as a sewer district in the interest of the public health." (R.R. at 4a.) Condemnees timely filed Preliminary Objections to Declaration of Taking Raising Questions of Fact. (R.R. at 68a-77a.) Prior to the scheduled hearing on the preliminary objections, the Township filed a Notice to Amend Declaration of Taking (R.R. at 28a-33a) and an Amended Declaration of Taking (113a-115a.) on the same day. The Amended Declaration of Taking made paragraph 3 more specific, and added a new paragraph, (¶ 4), as follows:

3. Said easement and right of way has been condemned pursuant to the provisions of the Home Rule Charter [and Optional Plans Law], 53 [Pa. C.S.] §§ 2901, 2961, and the First Class Township Code, 53 [P. S.] § 56901, ... 57401, 57401.1, 57402, 57403, and 57404.⁶

4. The condemned parcel also includes a portion of land that is located in Fox Chapel Borough, and is also authorized under 53 P.S. §§ 2201, 2202,⁷ 2331;⁸ 1998, Dec. 3, P.L. 931, No. 119, § 1, and Ordinance No. 1103. Authority for this condemnation also exists pursuant to [Section 2440 of the Township Code,] 53 P.S. § 57440 and an agreement between the Township of O'Hara and Fox Chapel . . . .

(R.R. at 113a-114a) (footnotes added). Condemnees again filed Preliminary Objections, which the trial court overruled after argument. The trial court found, inter alia, that the Borough "specifically agreed to the condemnation by the August 18, 2003 agreement with the Township of O'Hara." (Slip Op. at 4), and that the effect of the parties' Agreement satisfied the "contract" requirement articulated in Section 2403 of the Township Code, 53 P.S. § 57403. The court also found that the Borough had "acquiesced" in the condemnation because it knew the condemnation proceedings were occurring, did not object to the taking, and failed to intervene to prevent the taking of property within its borders. Condemnees timely filed an appeal to this Court.

On appeal, Condemnees present two issues for our review:⁹ (1) whether the Township is without the power and right to condemn any portion of their property because it is located entirely outside the Township's borders; and (2) whether the Amended Declaration of Taking fails to comply with specific requirements of the Eminent Domain Code (Code).

Our standard of review of a trial court's order dismissing preliminary objections in an eminent domain matter is limited to determining whether the trial court abused its discretion or committed an error of law. In re Condemnation of Penn Township, 702 A.2d 614 (Pa. Cmwlth. 1997).

First, Condemnees argue that the Township is without the power and authority to condemn any portion of their property because it is located entirely outside the Township's borders. They claim that Section 2440(d) of the Township Code, 53 P.S. § 57440(d), specifically confirms and supports this argument. The Township, on the other hand, contends that Condemnees' reliance on this Section is misplaced because it refers to joint sewer systems, which this proposed system is not. Rather, the Township argues that Section 2403 of the Township Code, 53 P.S. § 57403, which authorizes a municipality to enter into contracts with adjoining municipalities in order to take property outside its borders for construction of sewer systems, is the section that controls here.

Preliminarily, we recognize that the authority to condemn property in eminent domain must be strictly construed. Olson v. Whitpain Township, 595 A.2d 706, 708 (Pa. Cmwlth. 1991). Eminent domain powers arise only when the legislature "points out the occasions, the modes and the agencies for its exercise . . . . While the right to exercise the power may be delegated, the body to which the power is entrusted has no authority beyond that legislatively granted." Interstate Cemetery Company Appeal, 422 Pa. 594, 596-98, 222 A.2d 906, 908-09 (1966). Section 303 of the Eminent Domain Code provides "the exclusive procedure governing condemnation of property;" however, it does not "enlarge or diminish the power of condemnation given by law to any condemnor." 26 P.S. § 1-303; see also Olson, 595 A.2d at 708.

The Pennsylvania Legislature has granted the right to exercise the power of eminent domain to first class townships pursuant to Section 1901 of the Township Code. That Section provides, in pertinent part: "In ... the construction of ... sewers ... a township of the first class may enter upon, appropriate, injure or destroy private lands, property and material." 53 P.S. § 56901. The Township has the explicit power and the right to condemn property; the question remains as to whether such power allows it to reach beyond its own borders.

Condemnees rely upon Section 2440 of the Township Code, which provides for "Building Joint Sewers," to support their argument that the Township has no power to condemn property outside its municipal borders. Section 2440 provides, in pertinent part:

(a) Townships may jointly with cities, boroughs or other townships build and construct sewers, ... and may connect into such system existing sewers, and may assess their respective portions of the cost thereof ....

...

(d) In any case where it shall be necessary to acquire, appropriate, inquire, or destroy private property, lands, property, or material to build any such joint sewer improvement, and the same cannot be acquired by purchase or gift, the right of eminent domain shall vest in the township, city, or borough where such property is located. ...

53 P.S. § 57440 (emphasis added). This Section of the Township Code applies only where municipalities are involved in joint sewer projects. Condemnees have not provided this Court with any evidence that the planned expansion of the Township's and Borough's sewers constitutes a joint sewer system or improvement. There is no evidence in the record, and no argument made, that the Authority is managed by a joint sewer board, pursuant to the provisions in Section 2440 of the Township Code, 53 P.S. § 57440(b) and (c) (allowing for appointment of joint sewer board composed of one representative from each township, city and borough joining in the project, to act as advisory and administrative agency for construction, operation and maintenance of sewer system, which has authority to adopt rules and regulations governing its proceedings and future plans for construction). Nor is there any evidence or argument that the proposed additions to the sewer system will be jointly owned or operated. To the contrary, there is evidence that the sewer belongs solely to the Borough ("the TOWNSHIP desires to connect to the BOROUGH's sewer." (Agreement, p. 1, R.R. at 217a)(emphasis added.) The Township and the Borough share only in the costs of construction of these sewer lines "in proportion to the number of...