Opinion
No. 2113 C.D. 2011 No. 2114 C.D. 2011
11-09-2012
In Re: Condemnation Proceedings of Montgomery Township For The Purpose of Acquiring Land For Park and Recreation Purposes Montgomery Township and The Zehr Family Limited Partnership No. 1 Appeal of: The Zehr Family Limited Partnership No. 1 In Re: Condemnation Proceeding of Montgomery Township For The Purpose of Acquiring Land For Park and Recreation Purposes Montgomery Township and The Zehr Family Limited Partnership No. 2 Appeal of: The Zehr Family Limited Partnership No. 2
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Before this Court are two consolidated cases in which The Zehr Family Limited Partnership (Condemnee) appeals identical orders of the Court of Common Pleas of Montgomery County (trial court) dismissing preliminary objections to declarations of taking filed by Montgomery Township (Township). Upon review, we vacate and remand for an evidentiary hearing on the preliminary objections.
The Township filed declarations of taking as to two properties owned by Condemnee, ostensibly for park and recreation purposes. Condemnee contends the actual purpose is to preserve open space, a purpose not within the Township's authority. Condemnee challenges the trial court's dismissal of its preliminary objections without holding a hearing.
I. Background
Condemnee owns two parcels of property, one parcel of 30 acres and one parcel of 20 acres, comprising a total of 50 acres in Montgomery Township. A historical home and outbuildings are located on three to four acres in the interior of the 30-acre parcel. Condemnee acquired the two parcels through two deeds; although identified by two tax ID numbers, the parcels are adjoined and function as a single tract (Property). The Property abuts Windlestrae Park, an existing Township park.
The Township's 2006 Open Space Plan recommended Condemnee's property for acquisition. Reproduced Record (R.R.) at 76a, 85a, 190a, 197a. By letter dated January 2, 2007, the Open Space Committee of the Township contacted Condemnee about acquiring a portion of the Property for purposes of its Open Space Plan. R.R. at 99a, 188a. In the letter, the Township advised it was interested in preserving the Property as open space, and it encouraged Condemnee to sell or donate the Property for that purpose.
The Township also contacted Condemnee in 2009 by letter, in which it referred to a potential agreement of sale of the Property to a developer. Reproduced Record (R.R.) at 77a.
By resolution passed on October 25, 2010, the Township Board of Supervisors authorized the taking of the Property by eminent domain (Resolution). The Resolution referred to the Township's Open Space Plan. See Supplemental Reproduced Record, (S.R.R.) at 1b-156b. The condemnation was a taking in fee simple absolute for the purported purpose of parks and recreation. See Em. Domain Proceeding, In rem Parcel No. 46-00-03607-00-1, ¶7, and No. 46-00-3602-00-6, ¶7.
The Township filed a Declaration of Taking as to each parcel (Declarations). The Township did not submit a plan reflecting the intended use of the Property. Condemnee filed preliminary objections to the Declarations.
In the preliminary objections, Condemnee asserted: (1) the actual purpose of the condemnation is to take the land for open space (which the Township has no power to do); (2) the purpose stated in the declaration of taking is not sufficiently specific and not properly developed; and, (3) the condemnation with respect to the home and outbuildings is excessive, entirely unnecessary and unwarranted.
Condemnee propounded requests for admissions and sought additional discovery by deposition. Condemnee represented that the preliminary objections presented questions of fact that necessitated taking evidence, including depositions of Township officials. The trial court heard argument on the sufficiency of the discovery responses, but did not take evidence.
Ultimately, the trial court overruled Condemnee's preliminary objections without holding a hearing or permitting additional discovery. The trial court held the declarations of taking were proper in that they met the requirements of the Eminent Domain Code (Code), 26 Pa. C.S. §§101-1106.
The Code requires that a declaration of taking be in writing, executed by the condemnor, captioned as a proceeding in rem and contain the following:
(1) The name and address of the condemnor.26 Pa. C.S. §302(b). Because the taking involved two different parcels of land owned by Condemnee, two separate declarations were filed.
(2) A specific reference to the statute and section under which the condemnation is authorized.
(3) A specific reference to the action, whether by ordinance, resolution or otherwise, by which the declaration of taking was authorized, including the date when the action was taken and the place where the record may be examined.
(4) A brief description of the purpose of the condemnation.
(5) A description of the property condemned, sufficient for identification, specifying the municipal corporation and the county or counties where the property taken is located, a reference to the place of recording in the office of the recorder of deeds of plans showing the property condemned or a statement that plans showing the property condemned are on the same day being lodged for record or filed in the office of the recorder of deeds in the county in accordance with section 304 (relating to recording notice of condemnation).
(6) A statement of the nature of the title acquired, if any.
(7) A statement specifying where a plan showing the condemned property may be inspected in the county in which the property taken is located.
(8) A statement of how just compensation has been made or secured.
The Declarations set forth the purpose of the taking as follows: "The purpose of the condemnation is to acquire land for public park and recreation purposes." R.R. at 14a, 127a. The Resolution further identified the purpose as follows:
the Township desires to acquire for recreational purposes as identified in the Montgomery Township 2006 Open Space Plan, as amended, January 22, 2007 and to incorporate said tracts into the Township Park system and utilize said tracts for passive and active recreational purposes for the benefit of the citizens of Montgomery Township and other appropriate ones.See Resolution, R.R. at 18a, 129a.
The Declarations identified condemnor and the authority under which the Township was acting. The Township acted pursuant to the Second Class Township Code (Township Code), Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§65101-68701. It states in pertinent part:
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.Section 2201 of the Township Code, 53 P.S. §67201 (emphasis added).
The trial court highlighted its discretion to determine whether the purported factual dispute is genuine. The trial court noted it has the discretion to permit or deny discovery and decide whether a hearing is necessary. "Based upon the totality of the circumstances, [the trial court] properly determined as a matter of law that condemnee's preliminary objections lack merit." Tr. Ct., Slip. Op. 1/9/2012, at 9.
In its opinion, the trial court reasoned that Condemnee must overcome the presumption that municipal officers acted properly in seeking condemnation. The trial court explained that detailed plans are required only when, on a threshold basis, the circumstances of the condemnation overcome that presumption.
In its opinion, the trial court distinguished Middletown Township v. Lands of Stone, 595 Pa. 607, 939 A.2d 331 (2007), advising that discovery and an evidentiary hearing were warranted in that case because there was an indicated purpose other than recreational use on the face of the declaration. The trial court noted "there is no evidentiary support for the [Condemnee's] argument that notwithstanding the stated purpose of parks and recreation in both the Declaration of Taking and attached Resolution approved by the Township supervisors, that the township's intention is simply to create open space." Tr. Ct., Slip. Op. at 7.
Condemnee appealed the trial court's orders as to both parcels. The two appeals were consolidated prior to argument before this Court.
Our scope of review in an eminent domain case is to determine whether the trial court abused its discretion or committed an error of law. In re Condemnation by the City of Coatesville, 822 A.2d 846 (Pa. Cmwlth. 2003); Captline v. Cnty. of Allegheny, 459 A.2d 1298 (Pa. Cmwlth. 1983), cert. denied, 466 U.S. 904 (1984).
II. Discussion
There are three questions before this Court: (1) whether the Township's alleged purpose in condemning the Property for recreation is pretext for the actual purpose of open space; (2) whether the condemnation of the buildings and surrounding curtilage was excessive; and, (3) whether the trial court erred in failing to hold an evidentiary hearing to assess these issues. The trial court also ruled the Township was entitled to a presumption of proper action, i.e., validity of the taking, absent any evidence of bad faith. Initially, we evaluate the parties' positions regarding the necessity for a hearing.
A. Necessity for a Hearing on Preliminary Objections
The Township characterizes Condemnee's challenge as a "mere assertion that the condemnation was for an improper purpose." Appellee's Br. at 5. The Township asserts Condemnee's request for discovery and a hearing is an effort to create a factual dispute where none exists. Further, the Township contends the Open Space Plan specifically identifies the Property as recommended for acquisition for park and recreation use. R.R. at 108a, 254a. The Township claims the Property will serve as a natural extension to Windlestrae Park, an existing recreational facility, including athletic fields.
The Township argues that there is no genuine issue of material fact that would warrant the holding of an evidentiary hearing or the taking of depositions. The Township also asserts that the Declarations and Resolution establish that the purpose of the taking is recreational, and thus within the Township's authority.
Condemnee responds that the Township condemned the Property to maintain the area as open space, an unauthorized purpose. In support, Condemnee refers to a letter from the Chairman of the Township Open Space Committee, in which he states that the Township will increase its open space by more than 10 percent with the acquisition of the Property. Condemnee asserts the Township must submit a detailed plan showing that the Declarations' stated purpose is not pretextual.
Condemnee also argues that inclusion of several buildings in the declaration of taking is unwarranted and requests these outbuildings and land be exempted from condemnation. However, it acknowledges that the buildings are located in the interior of the Property.
Applying the law to these facts, we are mindful of the role of preliminary objections in the eminent domain arena.
Preliminary objections are the exclusive method for challenging a declaration of taking. Bear Creek Twp. v. Riebel, 37 A.3d 64 (Pa. Cmwlth. 2012). Preliminary objections in the context of eminent domain cases serve a very different purpose than preliminary objections filed in other civil cases under the Pennsylvania Rules of Civil Procedure. N. Penn Water v. A Certain Parcel of Land, 650 A.2d 1197 (Pa. Cmwlth. 1994) (citing Dep't of Transp. v. Florek, 455 A.2d 1263 (Pa. Cmwlth. 1983)). In eminent domain cases, preliminary objections are intended as a procedure to resolve expeditiously the factual and legal challenges to the declaration of taking before the parties move to the second distinct proceeding for determining damages. Id. (citing Appeal of Hanni, 420 Pa. 289, 293-295, 216 A.2d 774, 777 (1966) (concurring opinion) (explaining predecessor to the current Section 306 of the Code provides an immediate device to determine the basic power or right to condemn)).
On appeal from a ruling on preliminary objections, our review is limited to determining whether the trial court committed an error of law or abused its discretion. Bear Creek Twp. An abuse of discretion occurs when a trial court renders a judgment that is manifestly unreasonable, arbitrary or capricious or fails to apply the law, or was motivated by partiality, prejudice bias, or ill will. Id.
Section 306(f) of the Code states that when an issue of fact is raised in preliminary objections, the Court shall take evidence by depositions or otherwise. 26 Pa. C.S. §306(f)(2). Where there are no disputed facts, a trial court may rule upon preliminary objections without a hearing. Miller v. Dep't of Transp., 498 A.2d 1370 (Pa. Cmwlth. 1985).
This Court has previously found that preliminary objections may not be dismissed where factual issues have not been decided. See, e.g., Werts v. Luzerne Borough Auth., 329 A.2d 335 (Pa. Cmwlth. 1974) (reversing and remanding case for taking of evidence because there were unresolved factual issues). In this case, Condemnee and the Township do not agree to the operative facts. Condemnee challenges the stated purpose of the taking, and the extent of the taking. In order to evaluate the genuineness of these purported disputes of fact, and pass upon the trial court's conclusion that no genuine issues of fact exist, see Tr. Ct., Slip Op. at 8, we carefully consider the parties' contentions regarding the purpose and extent of the taking.
1. Purpose of the Taking
Condemnee contends that the purpose of the taking stated in the declaration, for "recreational use" disguises the Township's actual purpose in taking the Property for open space. In support, Condemnee cites letters of the Township from 2007 and 2009, and a more recent newspaper letter to the editor from a Township official indicating intentions to acquire the land for open space in its natural form.
Section 2201 of the Township Code authorizes a township to acquire "lands or buildings" to create "parks, playgrounds, playfields, gymnasiums, swimming pools, indoor recreation centers, public parks and other recreation areas and facilities." 53 P.S. §67201. As we reasoned in Bear Creek Township, "[t]his list explains what the Legislature meant by 'recreational purposes.'" Id. at 68.
However, open space may not qualify as a recreational purpose, especially where it is a method for preventing proposed development. See Middletown Twp. Additionally, in the Open Space Lands Act, the Legislature expressly forbade townships from exercising the power of eminent domain for open space purposes. Section 8 states "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.
Act of Jan. 19, 1968, P.L. (1967) 992, as amended, 32 P.S. §§5001-5013.
Pursuant to the Code, a declaration of taking need only contain "a brief description of the purpose of the condemnation." 26 Pa. C.S. §302(b)(4). The Township argues that the stated purpose in the declaration suffices to show the actual purpose of the taking, and the courts need look no deeper into the matter. However, in so arguing, the Township does not account for our Supreme Court's analysis in Middletown Township. There, our Supreme Court explained that "in order to uphold the invocation of the power of eminent domain, this Court must find that the recreational purpose was real and fundamental, not post-hoc or pre-textual." Middletown Twp., 595 Pa. at 618, 939 A.2d at 338.
As in this case, the condemnee in Middletown Township challenged the stated purpose in the declaration of taking, arguing the township lacked the authority to take property for open space purposes. The Supreme Court held as a matter of law that a township is restricted in its taking to recreational purposes. Importantly, the Supreme Court looked to deposition testimony and other record evidence in order to evaluate the true purpose of the taking. In contrast to this case, the trial court there determined the preliminary objections in part based upon depositions of township officials. Here, the trial court did not have the benefit of any depositions or discovery, aside from partially answered requests for admission.
In Middletown Township, the trial court found that the township had no specific plan for the subject of the taking, and did not need one because it had a number of options designated as "recreational purposes." The trial court also found that the fact that "the condemnation may have the inevitable consequence of preservation [of open space by preventing development] . . . does not invalidate the taking." Id. at 612, 939 A.2d at 334. This Court agreed, and affirmed that trial court's decision overruling preliminary objections.
Our Supreme Court reversed, reasoning the Township exceeded its authority under the Township Code based on the record developed.
Specifically, the Middletown Township Court explained that a suitable investigation is required into whether the property is being acquired for an authorized public use, and that the record before the lower court did not support a finding that the use was recreational. The Court emphasized
that condemnations have been consistently upheld when the taking is orchestrated according to a carefully developed plan which effectuates the stated purpose. See School District of Pittsburgh, Pidstawski and Kelo, supra [citations omitted]. Anything less would make an empty shell of our public use requirements. It cannot be sufficient to merely wave the proper statutory language like a scepter under the nose of a property owner and demand that he forfeit his land for the sake of the public. Rather, there must be some substantial and rational proof by way of an intelligent plan that demonstrates informed judgment to prove that an authorized public purpose is the true goal of the taking.Id. at 622, 939 A.2d at 340 (emphasis added). If the recreational use was not the true purpose behind the taking, then the Township did not have the authority to act, and the taking is void ab initio. Id.
Pursuant to Middletown Township, the taking must be carefully planned, and the existence of a carefully considered development plan may be given great weight; otherwise, the taking may be arbitrary. Id. at 618-19, 939 A.2d at 338. The reviewing court must find that the recreational purpose was real and fundamental, not pre-textual. Id. In this case, there is no proof that the Township made an intelligent judgment or pursued a concrete plan and took the Property for purely recreational purposes as within its statutory authority.
To the extent the Township argues that the proof is within the Open Space Plan in the Supplemental Reproduced Record, we note that the trial court did not have the benefit of that plan as part of the record upon which it based its decision. On remand, the trial court will be able to consider the plan as well as other evidence Condemnee submits regarding the true purpose.
We also follow our rationale in Golden Dawn Shops v. Philadelphia Redevelopment Authority, 282 A.2d 395 (Pa. Cmwlth. 1971). In Golden Dawn, this Court reasoned that a condemnee is entitled to an evidentiary hearing on whether the condemnation was for the public purpose asserted. By challenging the purpose of the condemnation, which is strictly construed and limited by statute, Condemnee raised a factual dispute that required the taking of evidence. Id.
Here, the factual dispute regarding the true purpose of the taking was before the trial court at the time it decided the preliminary objections. Therefore, the trial court erred in failing to follow Section 306(f) of the Code and develop an evidentiary record.
2. Extent of the Taking
This Court has stated that "private property may be taken for public purposes only in such an amount and to such an extent as these purposes reasonably require." See Twp. of Cornplanter v. McGregor, 745 A.2d 725 (Pa. Cmwlth. 2000). In Winger v. Aires, 371 Pa. 242, 89 A.2d 521 (1952), our Supreme Court held that a taking of 55 acres for a school was an abuse of discretion because the taking was excessive for its purpose. The facts indicating the excessive nature were apparent on the face of the declaration in Winger, obviating any need for discovery on the issue. In this case, however, the declaration was too general to permit such a conclusion.
As Condemnee points out, there is nothing in the declaration of taking indicating the Township had a reason to condemn the historical farmhouse and small acreage upon which it sits for any purpose. Condemnee cannot show the invalidity of the taking without evidence, and yet was not afforded the opportunity to present such evidence before the trial court.
During oral argument on appeal, counsel for Township asserted for the first time that the trial court held a hearing on the preliminary objections. Counsel referred to the transcript from the oral arguments on a motion regarding the sufficiency of discovery responses as a hearing sufficient for condemnation purposes. It is clear from review of the transcript that the trial court did not take evidence at that time, and in fact, later denied Condemnee access to the desired evidence in the form of depositions of Township officials. See R.R. at 230a-261a.
When raised by preliminary objections, the issue of whether the proposed taking is excessive raises an issue of fact, and the court must take evidence on that issue. Appeal of McKonly, 618 A.2d 1169 (Pa. Cmwlth. 1992).
Without a developed evidentiary record, we cannot assess whether the taking is tailored to the stated public purpose and does not exceed what is necessary. The trial court should have permitted the creation of such a record to properly evaluate the taking's validity. As it did not, we must remand these cases.
B. Presumption of Public Purpose
Condemnee contends that the Township is not entitled to a presumption that it acts in the public interest, such that its taking is presumed to be for a proper purpose. Condemnee asserts the Township cannot take the Property until after a suitable investigation leading to an informed judgment regarding the parameters of the taking as to its scope and purpose.
The Township argues that the taking does not need to have a planned concrete or clearly defined use, as it is entitled to a presumption that its actions are in the public interest. Notably, in its Summary of Argument, the Township asserts "the law requires a condemnee ... to present substantial evidence in order to overcome this presumption [that the government acts in the public interest] before a municipality is required to present supplementary evidence at a hearing to justify the condemnation." Appellee's Br. at 5 (emphasis added).
The trial court stated that it "will not review the action of a governmental body like the Township involving acts of discretion, in the absence of bad faith, fraud, capricious action or abuse of power." Tr. Ct., Slip Op. at 6. It cited one appellate case for that proposition, Blumenschein v. Pittsburgh Housing Authority. The trial court reasoned that a detailed plan of a taking is not required unless a condemnee can submit substantial evidence to overcome this presumption. For this proposition, it cited Winger and In re School District of Pittsburgh, 460 Pa. 566, 244 A.2d 42 (1968). Neither case shifts the burden of proof to a condemnee, and both significantly pre-date Middletown Township.
Blumenschein v. Pittsburgh Hous. Auth., 379 Pa. 566, 109 A.2d 331 (1954), stands for the general proposition that courts will not review discretionary acts of governmental bodies; it does not hold that a governmental body is above legal requirements for meeting the applicable public purpose for a condemnation. --------
Our review of the trial court's rationale leads us to conclude it is under the misimpression that the condemnee bears a burden of proving its property should not be taken. That underlying justification is inconsistent with the Code and precedent.
A township's power to condemn is limited by statute and thus not purely a matter of discretion. While it is presumed that a township acts lawfully when it condemns property, "it is equally true ... that a township's power of eminent domain must be strictly construed." Bear Creek Twp., 37 A.3d at 68. The test to apply to condemnation looks beyond professed good intentions of a public purpose; a court must consider whether the condemnation was within the Township's authority as circumscribed in the Township Code. Id.
Given the constitutional implications of the taking, our appellate courts anticipate a searching, robust judicial analysis of the purpose and extent of the exercise of the power. While a municipality may rely on a presumption of regularity, the record must still support the exercise of the power of eminent domain. Id.
We disagree with the Township's position that it did not need to create a specific plan for the taking illustrating how the Property would be used. Our Supreme Court in Middletown Township required that the record support a finding of a condemnation proceeding informed by an intelligent judgment or a concrete plan to use the specific property condemned for recreational purposes. Id. at 621, 939 A.2d at 340. Without sufficient information on the purpose and extent, the trial court here was not armed with facts to assess whether the taking was valid and within the Township's authority. Under Middletown Township, the courts must test the stated purpose, not presume its accuracy.
III. Conclusion
Because Condemnee's preliminary objections raised genuine issues of fact, the trial court was required by Section 306 of the Code to take evidence on those issues before deciding the preliminary objections. For the forgoing reasons, the order dismissing Condemnee's preliminary objections is vacated and the cases remanded so the trial court may receive evidence in accordance with this opinion.
/s/_________
ROBERT SIMPSON, Judge Judge McCullough did not participate in the decision in this case. ORDER
AND NOW, this 9th day of November, 2012, the order of Court of Common Pleas of Montgomery County is VACATED AND REMANDED with instructions to the Court of Common Pleas to conduct a hearing on the Condemnee's preliminary objections.
Jurisdiction is relinquished.
/s/_________
ROBERT SIMPSON, Judge