Opinion
No. 1372 C.D. 2011
04-30-2012
In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, Right of Way for State Route 8018, Section CAS, In the City of Chester Clinton Brown, Appellant v. Commonwealth of Pennsylvania, Department of Transportation
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Clinton Brown (Brown) appeals from the order of the Court of Common Pleas of Delaware County (trial court) which sustained the Pennsylvania Department of Transportation's (PennDOT) Preliminary Objections to Count II of Brown's Petition for Board of Viewers which alleged a de facto taking.
Brown was the owner of four contiguous lots located at the corner of Jeffery Street and Engle Street in the City of Chester (City), Delaware County, Pennsylvania. According to Brown, at the time he first purchased the Property in 2003, and for many years prior thereto, there existed between Jeffery and Engle Streets a "paper street" formerly dedicated to the City and known as "Front Street." Although dedicated, Front Street was never opened by the City or used by the public for a continuous period of over 21 years. It was not paved, or curbed. Both Brown and his predecessors treated the "paper street" as part of the Property. Brown placed a fence around portions of the "paper street" from its "curb line" on Jeffery Street, 139 feet to the easterly side of a 20-foot alley. The fenced-in area was used by Brown and his predecessors as a storage and parking lot, access to which was gained solely through a locked gate at the curb side of Jeffery Street.
On April 25, 2007, PennDOT filed a Declaration of Taking and Notice of Condemnation for 2001.04 square feet of Brown's property along Jeffery Street for a limited access and temporary construction easement in connection with improvements to State Route 8018. PennDOT referred to the condemned parcel "as shown in plan book 29, page 14, sheet 56." Declaration of Taking and Notice of Condemnation, Schedule of Property Condemned, at 1; Reproduced Record (R.R.) at 16a. There was some question as to whether "sheet 56" was recorded as stated in the Declaration of Taking. According to the sworn Affidavit of Emma Christie, Chief Deputy Clerk, Office of the Recorder of Deeds of Delaware County, it was not. Affidavit of Emma Christie, undated, at 1; R.R. at 42a.
Brown did not file Preliminary Objections to the Taking. PennDOT paid into the Court $7,100 as "estimated just compensation" for the taking.
In late October 2009, PennDOT entered Brown's land and tore down his fencing which had enclosed the unopened "paper street." PennDOT then proceeded to pave and "open" Front Street from Jeffery Street to Engle Street to provide access to industrial and commercial users whose properties were situated on Jeffery Street below Front Street.
On December 15, 2010, Brown filed a Petition for Board of Viewers in which he claimed damages under the theory of inverse de facto taking. He alleged that a de facto taking occurred when PennDOT "opened Front Street from Jeffery Street to Engle Street ... to provide access to industrial and commercial users as part of the State Route 8018 [construction project]." Petition for Board of Viewers, December 15, 2010, ¶14, at 3.
Brown asserted that PennDOT took 8 ,400 square feet more of his Property than was identified in the Declaration of Taking. Brown claimed that since the "paper street" was never opened, the public's right of use had been extinguished long ago and that he owned the "paper street" in fee pursuant to the Act of May 9, 1899, P.L. 173, No. 192, §1, 36 P.S. §1961:
36 P.S. §1961 provides:
Any street , lane or alley, laid out by any person or persons in any village or town plot or plan of lots, on lands owned by such person or persons in case the same has not been opened to , or used by, the public for twenty-one years next after the laying out of the same, shall be and have no force and effect and shall not be opened, without the consent of the owner or owners of the land on which the same has been, or shall be, laid out. (Emphasis added).
9. Petitioner, continuing in January 2003, and his predecessor's in title for many years previous, had fenced in the entire paper street from its curb line on Jeffery Street, 139 feet to the westerly side of a 20 foot alley. This fenced area was utilized as a storage and parking lot, access to which was gained solely through a locked gate and the curb of Jeffery Street.
10. From the time of its acceptance and laying out by the city in its maps of streets until a time prior to 2003, Front Street between Jeffery and Engle Streets was not
opened by the city nor used by the public for a continuous period of over 30 years.Petition for Board of Viewers, December 15, 2010, ¶¶9-10, at 3.
11. The paper street having not been opened from Jeffery Street to Engle Street for a period in excess of 21 years since first laid out by the city in its plan of streets, the public's right of use was extinguished. 36 P.S. §1961.
On February 24, 2010, PennDOT filed Preliminary Objections and averred that: (1) Front Street was " a municipal street adjacent to [Brown's] property " and that (2) Brown waived his right to assert a de facto taking when he failed to file preliminary objections. PennDOT's Preliminary Objections at ¶10.
On June 21, 2011, after hearing evidence and oral arguments, the trial court sustained PennDOT's Preliminary Objections. The trial court concluded that Brown waived his claims for a de facto taking because he failed to file Preliminary Objections to the Declaration of Taking. In support of its order, the trial court recognized that the Eminent Domain Code (Code) provides that preliminary objections are the exclusive method of challenging condemnation proceedings. See 26 Pa.C.S. § 306(a). Failure to do so shall constitute a waiver. 26 Pa.C.S. § 306(b).
26 Pa.C.S. §§ 101-1106. The Code became effective September 1, 2006.
Brown filed a Motion for Reconsideration which was denied.
On appeal, Brown argues that the trial court erred when it concluded that he waived his right to claim a de facto taking of Front Street. Brown asserts that the PennDOT condemned only 2001.42 square feet, believing incorrectly that Front Street (60 feet wide and 140 feet deep from Jeffery Street) was a City street. Consequently, the Declaration of Taking did not include the 8400 feet , which Brown claims is not a City Street. Brown claims he only became aware that PennDOT condemned what he deemed to be "his property" when PennDOT tore down his fence and began to pave Front Street, thirty months after the Declaration of Taking was filed. He asserts that neither the Declaration of Taking nor the attached property or plat plans, referred to any condemnation activity at Front Street. The Declaration referred only to the 2001.42 square feet along Jeffery Street, which was different property than the Front Street property. Because the Declaration of Taking did not adequately establish the extent or effect of the taking, Brown's right to object to the taking was not waived.
Where the trial court has either sustained or overruled preliminary objections in an eminent domain case, this Court's review is limited to a determination of whether the trial court committed an error of law or abused its discretion. Lang v. Commonwealth Department of Transportation, 13 A.3d 1043, 1045 n. 2 (Pa. Cmwlth. 2011). An abuse of discretion exists when the trial court has reached a conclusion which overrides or misapplies the law or when the judgment exercised is manifestly unreasonable or the result of partiality, prejudice or ill will. Middletown Township v. Lands of Stone, 595 Pa. 607, 939 A.2d 331 (2007).
PennDOT, on the other hand, argues that it was unnecessary to include Front Street in the Declaration of Taking because it was a municipal street that was never vacated by the City.
In fact, according to PennDOT, the absence of any mention of Front Street in the Declaration of Taking, together with "sheet 56" (which was referenced in the Declaration of Taking), effectively put Brown on notice that PennDOT did not consider Brown the owner of Front Street. PennDOT only "cross-hatched" the strip along Jeffrey Street on "plan sheet 56" to indicate the portion being "taken." According to PennDOT, had it recognized any legal property interest of Brown in Front Street, it would have had to cross-hatch Front Street in the same way. PennDOT believes Brown should have deduced from the lack of "cross-hatch" markings on Front Street that PennDOT considered Front Street to be a public street. It posits: "Why else would DOT be acquiring a temporary construction easement to build a driveway from the Brown property to the Front Street right of way?" PennDOT's Brief at 12-13. However, this Court does not agree that it would be fair to place the onus on Brown to decipher the meaning of the "absence of" PennDOT's cross-hatch marks when the Declaration of Taking mentioned only the 2001.42 square foot strip along Jeffery Street. From the drawings, Brown could have just as easily concluded, based on his belief that he owned Front Street, that the absence of cross-hatch markings meant that Front Street was not subject to the condemnation. --------
It is well-settled that a condemnee's failure to file Preliminary Objections to a Declaration of Taking constitutes a waiver of his rights to assert a de facto taking. Martin Media v. Commonwealth Department of Transportation, 560 Pa. 215, 743 A.2d 448 (2000). However, where the correct amount of the condemned property is not set forth accurately in the formal taking, a failure to file Preliminary Objections does not constitute a waiver. City of Pittsburgh v. Gold, 390 A.2d 1373 (Pa. Cmwlth. 1978). The reason for the rule is clear. One may only object to that of which he is made fully aware.
Here, Brown contends that the trial court erred when it found waiver. He argues PennDOT mistakenly failed to include Front Street in the Declaration of Taking. Brown only later learned of the true extent of the taking when PennDOT tore down his fence and began to pave Front Street. Brown did not file Preliminary Objections before that time because he could not have known from the Declaration of Taking that PennDOT intended to "take" Front Street.
Without deciding who owned Front Street, the trial court concluded that Brown waived his right to assert a de facto taking because he failed to file Preliminary Objections to the Declaration of Taking. This Court believes this underlying question of fact is critical to the issue of whether the Declaration of Taking accurately set forth the amount of the condemned property. If PennDOT was mistaken in its belief that the City owned Front Street, then the Declaration of Taking and plan sheet 56 was wrong and Brown may not be held to have waived his right to assert a de facto taking.
On this record, this Court is unable to determine whether the Declaration of Taking accurately set forth the amount of condemned property, or whether Brown waived his right to assert a de facto taking. As it stands, it is not clear who rightfully owns Front Street; Brown or the City?
The important issues here are dependent on resolution of certain factual issues, including: (1) whether Front Street was, in fact, ever vacated by the City; (2) whether title of that particular portion of land reverted to Brown pursuant to 36 P.S. §1961, or remained a public City street. Because these facts were not developed it is necessary to remand the matter to the trial court to make these critical findings. Once the legal owner of Front Street is determined, the trial court will be able to decide whether the description of property in the Declaration was accurate, whether Brown timely asserted his rights, and whether PennDOT's opening of Front Street constituted a de facto taking.
Accordingly, the trial court's order is vacated and the matter is remanded for a hearing on the merits of Brown's claim that the City vacated the public right of way. Jurisdiction is relinquished.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 30th day of April, 2012, the order of the Court of Common Pleas of Delaware County in the above-captioned case is vacated. The matter is remanded for an evidentiary hearing in accordance with this opinion. Jurisdiction is relinquished.
/s/_________
BERNARD L. McGINLEY, Judge