The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Condemnation of Fee Simple Title :
to 0.069 Acres of Vacant Land and :
Certain Easements Owned by :
Brandywine Village Associates :
(UPI#30-5-226) and Condemnation :
of Fee Simple Title to 1.93 Acres :
and a Temporary Grading Easement :
Over 0.26 Acres of Vacant Land :
Owned by L&R Partnership and :
John R. Cropper (UPI#30-2-47) for a :
Public Sheet :
: No. 1409 C.D. 2017
Appeal of Brandywine Village : Argued: June 7, 2018
Associates, L&R Partnership, and :
John R. Cropper :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI FILED: July 2, 2018
Brandywine Village Associates (BVA), L&R Partnership (L&R) and
John R. Cropper (Cropper) (collectively, BVA) appeal the order of the Court of
Common Pleas of Chester County (trial court) overruling their preliminary
objections in response to East Brandywine Township’s (Township) declaration of
taking to condemn the southeastern edge of a 10.46-acre parcel (L&R Property) for
the construction of a road (Connector Road) connecting the parcel with Horseshoe
Pike (Route 322), on which it fronts, and North Guthriesville Road.
I.
A.
The properties at issue in this dispute consist of three parcels located
in the Township. Carlino East Brandywine, L.P. (Carlino) is the equitable owner
of a largely undeveloped tract of land that is approximately 10.118 acres (Carlino
Property). The Carlino Property was originally part of a 21-acre parcel. BVA
owns the remaining acreage, adjacent to the east side of the Carlino Property,
which has been developed as a shopping center (BVA Development). To the north
side of the Carlino Property is the L&R Property, an undeveloped parcel of land
owned by L&R and Cropper. L&R is the general partner of BVA, and Cropper is
a 50 percent owner in the L&R Property and the BVA Development.
Prior to Carlino’s acquisition of the Carlino Property, BVA had
certain rights to use it under a Cross Easement Agreement entered into with
Carlino’s predecessor in title. Because the original 21-acre parcel did not have
access to any public sewer, the Cross Easement Agreement provided that BVA
would build a sewer plant at its expense on the Carlino Property for the use of both
properties. The Cross Easement Agreement also granted BVA an easement to the
Carlino Property for stormwater management as well as an access easement to use
the Carlino Property as a main entrance to BVA’s shopping center.1
1
Under the Cross Easement Agreement, the predecessor-in-interest granted BVA a sewer
system easement to install an on-site septic sewer system, including a drainage area and reserve
(Footnote continued on next page…)
2
B.
Beginning in 2010, Carlino submitted land development plans to the
Township to build a 51,525 square-foot supermarket with a 9,250 square-foot
expansion area, a 4,600 square-foot attached retail building, and a pad site for a
4,088 square-foot bank. From the beginning, the Township insisted that Carlino
provide and pay for the construction of the Connector Road.2
Because the Connector Road was to cross over the L&R Property, in
August 2014, the Township and Carlino entered into a Memorandum of
Understanding (MOU), which provides in pertinent part:
In order to support existing volumes of traffic and traffic
projected to be generated by new growth and
development in the Township, the Township has an
interest in creating [the Connector Road.]
(continued…)
drainage area. It also provided an access easement to allow construction of a roadway through
the property to the BVA property. The Cross Easement Agreement specified that the access
drive could be modified, but that it must not “interfere with the flow of traffic . . . or with surface
water drainage.” (Reproduced Record (R.R.) at 2541a.) The Cross Easement Agreement further
provided a highway improvement easement, dedicating land within the ultimate right-of-way
along Route 322 to public use, and a stormwater basin and drainage easement, which included a
reserve effluent disposal area.
2
A fuller description of the facts and procedural history of the underlying land
development dispute can be found in Brandywine Village Associates v. East Brandywine
Township Board of Supervisors (Pa. Cmwlth., No. 164 C.D. 2017, filed January 5, 2018)
(“Brandywine I”) and Brandywine Village Associates v. East Brandywine Township Board of
Supervisors (Pa. Cmwlth., No. 1149 C.D. 2017, filed April 19, 2018) (“Brandywine II”).
3
The Connector Road would traverse the eastern side of
the Carlino Property and extend northward through [the
L&R Property]. . . .
In order to construct the Connector Road, a portion of the
Carlino Property would need to be used for the right-of-
way and the construction of the Connector Road and
related improvements.
In addition, in order to construct the Connector Road and
[stormwater] management facilities necessary for the
Connector Road, a portion of the L&R Property (the
“Connector Road Parcel”) and right-of-way over a small
area of the [BVA] Property adjacent to Horseshoe Pike
(“322 ROW”) would need to be acquired. . . .
Further, the [access and stormwater basin and drainage
easements granted under the Cross Easement Agreement
(collectively, Easements)] are located in areas on the
Carlino Property where the Connector Road is proposed
and will need to be modified or extinguished in order to
construct the Connector Road.
The Connector Road is intended as a public road for use
by the general public and is not necessary for the
development of [Carlino’s] Property. The Township has
made an independent judgment that the Connector Road
is in the public interest and for a public purpose.
The Township has informed [Carlino] that the Township
would like the Connector Road constructed by [Carlino]
in connection with development of the Project.
***
[However, as] a result of [Carlino’s] inability to acquire
the Connector Road Parcel and the 322 ROW and
extinguish the Easements by negotiation, the Township
intends to exercise its power of eminent domain to
acquire the Connector Road Parcel and the 322 ROW and
terminate the Easements as necessary to construct the
Connector Road.
4
(Reproduced Record (R.R.) at 1340a-1350a.) Under the MOU, Carlino, in lieu of
paying a significant portion of the Township’s transportation impact fee of
$1,795,000, was obligated to design, permit and construct at its expense the
Connector Road and dedicate it to the Township.
On October 2, 2014, the Township’s Board of Supervisors adopted
Resolution 15 of 2014 authorizing the condemnation of the above property and
easement interests for the construction of the Connector Road and associated
improvements. The Township then filed a declaration of taking on November 17,
2014, for the condemnation and acquisition of: (1) fee simple title to a strip of land
on the southern boundary of the BVA Property for use as a deceleration lane; (2)
BVA’s access driveway and stormwater easements over the Carlino Property
granted under the Cross Easement Agreement; and (3) fee simple title to vacant
land located at the southeast corner of the L&R Property, through which it plans to
install the Connector Road. The condemned portion of the L&R Property contains
a significant amount of wetlands and a pond.
BVA timely filed preliminary objections, which were later reduced
because the trial court sustained the Township’s and Carlino’s responsive
preliminary objections.3 As modified, BVA’s preliminary objections are as
follows:
3
Following BVA’s preliminary objections, the Township and Carlino filed responsive
preliminary objections. In circumstances outside of eminent domain proceedings, these
objections would have been asserted under Pa.R.C.P. No. 1028(a)(1) (lack of subject matter
jurisdiction); Pa.R.C.P. No. 1028(a)(2) (failure of a pleading to conform to law or rule of court or
inclusion of scandalous or impertinent matter); Pa.R.C.P. No. 1028(a)(3) (insufficient specificity
in a pleading); and Pa.R.C.P. No. 1028(a)(4) (demurrer). On April 16, 2015, the trial court filed
(Footnote continued on next page…)
5
(1) The land taken is in excess of that which is
reasonably required to serve the public purpose.
(Preliminary Objections filed on January 7, 2015 at ¶
4.A.)
(2) The declaration of taking contains an insufficient
recital of the purpose of the condemnation. (Id. at ¶
4.A.2.)
(3) The purpose of the Township in filing the
declaration of taking is not to install the Connector Road.
The recital of purpose in taking the 1.93 acres fails to
note it is for a detention basin, the condemnation of
which by a second class township is not authorized by
law. (Id. at ¶ 4.A.3.)
(4) The condemnation violates Section 204(a) of the
Private Property Protection Act, 28 Pa.C.S. § 204(a),
which prohibits the taking of private property in order to
use it for private enterprise. (Id. at ¶ 4.A.5.)
(5) The takings were never properly authorized by the
Resolution adopted by the Board of Supervisors of East
Brandywine Township on October 2, 2014. (Id. at ¶ 7.)
(continued…)
an order sustaining these responsive preliminary objections. On appeal, BVA seems to contend
that this was in error because the Rules of Civil Procedure are not applicable to eminent domain
proceedings. Gilyard v. Redevelopment Authority of Philadelphia, 780 A.2d 793, 794 (Pa.
Cmwlth. 2001). However, BVA does not identify what responsive preliminary objections it
disputes or how exactly it was prejudiced by the trial court’s purported error. In any event, just
because the Rules of Civil Procedure are not applicable does not mean that they cannot be used
in an “instructive” manner. As we have explained, in eminent domain cases, preliminary
objections serve a somewhat broader purpose and are intended as a procedure to resolve
expeditiously the threshold factual and legal challenges to a declaration of taking, without
awaiting further proceedings. In re Condemnation of .036 Acres, More or Less, of Land Owned
by Wexford Plaza Associates, 674 A.2d 1204, 1207 (Pa. Cmwlth. 1996). Here, that is exactly
what the Township’s use of preliminary objections aimed to do.
6
(6) All the proposed takings are principally intended
to benefit a private entity, to wit, Carlino East
Brandywine, LP. (Id. at ¶ 11.)
(7) The declaration of taking is defective because it
fails to include all condemnees necessary to acquire fee
simple title as set forth in the declaration. Specifically,
the individual owners of BVA, their tenants, subtenants,
employees, concessionaires, licensees, customers, and
invitees. (Preliminary Objections filed on January 7,
2015 at ¶ 13.)
(8) The documents attached to the declaration of
taking do not demonstrate a concrete plan for the use of
the specific property taken for a public road. (Id. at ¶
19.)
(9) The declaration of taking impermissibly seeks to
widen or improve a state highway, which is barred by
Section 2304 of the Second Class Township Code,4 53
P.S. § 67304, absent the consent of [the Pennsylvania
Department of Transportation (PennDOT)]. (Id. at ¶ 20.)
(10) The declaration of taking condemns property
greater than 120-feet in width, the maximum size of a
right-of-way for any township of the second class. (Id. at
¶ 21.)
(11) An earlier Township resolution, on August 20,
2014, authorized the Township’s MOU with Carlino,
which required the condemnation now at issue, and the
[d]eclaration of [t]aking’s failure to attach that resolution
makes it defective and untimely. (Id. at ¶ 30.)
(12) Townships of the second class are barred from
enacting resolutions, and the resolution that authorized
the declaration of taking is therefore illegal. (Id. at ¶ 31.)
4
Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§ 65101 – 68701.
7
(13) There is no public benefit to the Connector Road.
(Preliminary Objections filed on January 7, 2015 at ¶ 35.)
(14) The takings violate Section 3 of The
Administrative Code of 1929,5 71 P.S. § 512, Section 911
of the State Highway Law,6 36 P.S. § 670-911, and 87
Pa. Code § 441.8(j)(5). (Order filed on September 16,
2016, R.R. at 136a.)
(15) The takings are a violation of Section 508(4)(iv) of
the Municipalities Planning Code,7 53 P.S. §
10508(4)(iv). (Id.)
In essence, BVA’s preliminary objections can be divided into three
types: (1) an assertion that the condemnation is not for a public purpose and/or
excessive; (2) an assertion that the condemnation is procedurally flawed; and (3)
an assertion that the Connector Road is illegal and/or is administratively barred
from construction.
II.
A.
Before the trial court, BVA primarily relied on the testimony of
Norman Ulrich (Ulrich), a licensed professional engineer, to challenge the scope
and advisability of the taking. Regarding the purpose of the Connector Road,
Ulrich testified that he believed the new turning radii of the Connector Road were
5
Act of April 9, 1929, P.L. 177, as amended, 71 P.S. §§ 511 – 527.
6
Act of June 1, 1945, P.L. 1242, as amended, 36 P.S. §§ 670-901 – 670-911.
7
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 – 11202.
8
dangerous. However, because he performed no analysis of the existing turn radii,
Ulrich was unable to testify as to whether the new plan was safer, less safe, or the
same as the existing conditions.
As to the purported excessiveness of the scope of the taking, Ulrich
disputed what the size of the taking for a stormwater drainage basin on the L&R
Property should be. Ulrich opined that only 20 percent of the access easement and
26 percent of the stormwater basin easement would be used for the Connector
Road. If the drainage basin located on the L&R Property was designed to only
collect stormwater runoff from the Connector Road, its size would be reduced up
to 76 percent. However, Ulrich did not know what the appropriate depth was for
his proposed basin or whether the depth should be increased or decreased. One of
his suggestions also required only dedicating the rearmost portion of the Connector
Road to the Township, and he was “not sure how that works.” (R.R. at 338a.)
Ulrich disagreed with the methodology used by ARNA, the company
that prepared Carlino’s plans. That company utilized both the Best Management
Practices (BMP) manual and the TR-55 to determine that Carlino would be able to
manage its stormwater runoff in the manner required by the relevant Township
ordinance. The BMP manual is a set of guidelines for stormwater best
management practices promulgated by the Pennsylvania Department of
Environmental Protection (DEP), which, at the time of Ulrich’s testimony, was
issued in 2006. The TR-55 is a book that outlines a design analysis process used as
a guideline in evaluating stormwater management plans, but does not address rain
9
gardens. Ulrich’s analysis was conducted using the TR-55 only, even though he
was aware that the Carlino site design included rain gardens.
B.
In opposition to Ulrich’s testimony, the Township and Carlino offered
the testimony of engineers Andreas Heinrich (Heinrich), Mark Padula (Padula),
and Charles Dobson (Dobson).
Heinrich is a traffic engineer and transportation planner working as
the consulting traffic engineer for the Township. He had urged that the Connector
Road run entirely parallel to the Carlino/BVA boundary to align it with a then-
proposed road on the other side of Route 322. Heinrich also explained that it was
important to shift the Connector Road east in order to maximize the distance
between signals along Route 322.
He also testified that PennDOT has no written rule regarding the
distance between signals, but the “general rule of thumb is to try to achieve a
minimum of a thousand foot spacing centerline to centerline between successive
signals.” (R.R. at 931a.) He believed that the distance between the existing access
easement’s egress onto Route 322 and the signal at Bollinger Road, located to the
west of the access easement, was approximately 900 feet. However, regardless of
the exact distance, he would prefer to place the Connector Road’s egress onto
Route 322 as far to the east as possible, in order to maximize the distance between
signals. Heinrich also testified that it was a best engineering practice to align roads
with property boundaries.
10
Padula, a civil engineer for 23 years, testified as a fact and expert
witness with engineering expertise in stormwater management. Padula was hired
as a consultant by the Township and participated in the development and review of
the Carlino land development application, with a particular emphasis on the
Connector Road’s stormwater management facilities. Padula testified that
ARNA’s stormwater calculations are based on BMPs that incorporate the rain
gardens to be installed on the Carlino site, which will slow the rate at which
stormwater drains from the Carlino development. Padula testified that the
Township’s stormwater obligation with respect to the Connector Road is to ensure
that the post-developed runoff rates and volumes be controlled to the level of the
pre-developed rates and volumes. In doing so, the Township must manage direct
rainfall and runoff from the Carlino Property as it is presently configured.
He opined that bio-retention basins should be designed to maximize
surface area for two reasons: first, shallower basins are preferred for safety
reasons; second, best practices require a drainage basin with a surface area “that is
no less than eight times smaller than the drainage area getting to it or five times
smaller than the impervious area draining to it.” (R.R. at 1115a.) Padula opined
that, even if no water from any source other than the Connector Road was to drain
to the contemplated detention basin on the L&R Property, he would not have
reduced the surface area of that basin. Padula also noted that the Township had an
obligation to install the pipe that will laterally cross the L&R Property to handle
pre-existing stormwater from the L&R Property, which will no longer have access
to its existing drain because of the construction of the Connector Road. The pipe
the Township will install is no larger than necessary to meet the Township’s
11
obligations, and that even if no water from any source other than the Connector
Road was to drain to the contemplated detention basin, including any drainage
from Carlino’s development, he would not have reduced the surface area of the
basin on that site.
Dobson is a civil engineer and licensed professional engineer whose
company was retained by the Township as its municipal engineer for the Carlino
Development. In addition to being a fact witness, Dobson was qualified as an
engineering expert. Dobson worked with Padula on reviewing Carlino’s
application and agreed with Padula that the stormwater detention basin proposed
for the L&R Property is adequately sized to handle runoff from the Connector
Road, and that he would not change the surface area of the detention basin even if
the total runoff to the basin was reduced. Dobson agreed with Padula that the
Township is obligated to install the drainpipe laterally on the L&R Property, and
that its size and location would not change based on the volume of water it will
carry.
He opined that the alignment of the Connector Road as depicted on
the Carlino Plan is generally consistent with good engineering practice. Dobson
opined that running the Connector Road through the Carlino development, as
opposed to along its eastern edge, would be inconsistent with good engineering
practice. Dobson testified that the Township could not run the Connector Road
along the eastern edge of the Carlino development and allow the remaining portion
of the access easement to stay because it would create inherent vehicular conflicts.
Even if the pavement of the access easement was removed and replaced with grass,
12
Dobson was concerned that the holder of the easement could attempt to exercise
the easement in the future, which would create the same inherent vehicular
conflicts. Dobson does not believe that the Connector Road will be dangerous for
trucks entering the BVA Development.
C.
As for the purpose and/or legitimacy of the taking, the Township first
offered the testimony of Scott Piersol (Piersol), who has been the Township
manager and emergency management coordinator for 21 years. Piersol testified
about the purpose of the taking, explaining that Carlino has the option to build the
Connector Road for the Township in exchange for a reduction in its traffic impact
fee; if it chooses not to do so, the Township will assess the full impact fee and the
Township itself will construct the Connector Road. He explained that the
Township has an incentive to reach agreements with developers to construct
township roads like the Connector Road because it is less expensive for the
developer to build a road than the Township, given Pennsylvania’s prevailing wage
laws. He also explained the reason the Township wishes to construct the
Connector Road is because it will create a much safer road situation at the
intersection of North Guthriesville Road and Route 322 because, currently, an
eastbound movement or left turn coming out requires the motorist to turn across
three lanes of traffic. Piersol has witnessed accidents and near accidents at the
intersection of Route 322 and North Guthriesville Road several times per year.
Piersol further testified that he participated in drafting the MOU and
recounted that Heinrich, the Township’s traffic engineer, advised that an earlier
13
plan for the Connector Road should be amended by adding a second access to the
BVA Development to address queueing issues. He also suggested to the Township
that BVA could further alleviate queueing by altering its own parking lot setup.
The existing Carlino Plan at the time of the hearing addressed both of these issues.
Piersol also testified that there were a series of unadvertised meetings
between Township officials and Carlino employees and officers to discuss the
Carlino Development, including the effect the development might have on the
BVA Development. During several of those meetings, two to three members of
the Board of Supervisors attended as well as Piersol to voice support for the
Carlino Development. At one of those meetings, two of the Township Supervisors
indicated a willingness to condemn certain portions of the BVA Development and
the L&R Property because the Township was interested in the Connector Road.
Although there was mention by Carlino that it was considering a development that
did not include the construction of the Connector Road, this option was ultimately
not pursued.
Piersol testified that after discussing potential development strategies
with Carlino, the Township began to insist that Carlino agree to indemnify it
against litigation related to the development. Once the Carlino development was
ready for formal action by the Board of Supervisors, the Board initially did not
give notice of its intention to vote on the Carlino issues to BVA. This is consistent
with the Township’s policy, which is that it is the interested parties’ “burden to be
aware of the submission through the legal notice.” (R.R. at 514a-515a.) In spite of
that policy, the Board ultimately gave special notice to BVA’s counsel of its
14
intention to vote on the MOU. On March 15, 2012, Piersol wrote a letter in which
he described the road as being “definitely a public purpose” and describing the
BVA/Carlino sewer dispute, which is not a subject of the condemnation, as “a bit
less of a public purpose.” (R.R. at 516a.)8
Mark Kocsi (Kocsi), the Township’s Chief of Police since 2002, also
affirmed the need for a Connector Road. Kocsi testified that he is familiar with the
Township’s roadways and traffic control devices. He testified that accidents
regularly occur at the intersection of Route 322 and North Guthriesville Road, the
most recent occurring several weeks prior to his testimony. The Department of
Transportation (PennDOT) has designated the section of Route 322 at the
intersection of North Guthriesville Road as an “aggressive driving area” and
provides grant funds for additional policing. (R.R. at 605a.) While Kocsi did not
participate in the formal design process for the Connector Road, he voiced
concerns about a lack of speed control devices in an early draft of the Connector
Road. Addressing these concerns, the current development plan for the Connector
Road includes crosswalks and stop signs. Kocsi opined that the proposed
Connector Road would have a “huge effect” on the traffic flow of the area,
ameliorating the danger of the intersection. (R.R. at 606a.)
8
Stacey Fuller has been the Township Solicitor since 2004. Her testimony echoes
Piersol’s testimony that, while Carlino was free to pursue a development plan without the
Connector Road, doing so would have increased the effective cost of its traffic impact fee by
approximately $2 million. She also echoed Piersol’s testimony that had the Township collected
the $2 million traffic impact fee, it would have used those funds to construct the Connector Road
on its own, first using its eminent domain power to condemn the entire length of the necessary
construction.
15
Arnold Kring (Kring) has been a Township Supervisor since January
2012 and is one of the supervisors who signed the MOU. Kring testified that in
determining the details of the property to be condemned and the size of the
condemnation, he relied on Township personnel, including the Township’s
engineers. Kring also testified that the condemnation in general and the Connector
Road in particular were intended by the Township for a public purpose – namely,
its use as a public road by the general public. Kring further testified that the
Township exercised its independent judgment in determining that construction of
the Connector Road was in the public interest.
Peter Miller (Miller) is the president of Carlino and testified that the
Township required the egress onto Route 322 be moved to the eastern edge of the
Carlino development. Miller testified that in August 2013, Carlino developed a
plan without the Connector Road, which the Township suggested it could proceed
with, but was never pursued because it would likely result in further delays due to
litigation with BVA. Miller testified that the Township was “adamant” about the
construction of the Connector Road (R.R. at 767a), and if Carlino proceeded with a
plan that did not include the Connector Road, it would incur a traffic impact fee of
between $1.5 to $1.9 million. By constructing the Connector Road, Carlino will
receive a credit against that impact fee of not all but “some residual amount.”
(R.R. at 778a.)9
9
Other testimony was offered before the trial court but is not relevant to this appeal.
Francis Hanney, the traffic services manager for PennDOT, testified about his review of
Carlino’s development and compliance with certain regulations. Marc Jonas, a land use and real
estate attorney, testified about the Cross Easement Agreement. Leonard and Richard Blair, who
represented BVA, testified about their attempts to negotiate with Carlino.
16
Following seven days of hearings, the trial court overruled BVA’s
preliminary objections in their entirety, determining that BVA did not sustain its
heavy burden for challenging the declaration of taking. This appeal followed.10
III.
On appeal, BVA once again contends that the declaration of taking
lacks a public purpose and is excessive, procedurally flawed, and/or is otherwise
unauthorized, illegal, or barred.11 We first address BVA’s various contentions that
the Township’s taking was for a private purpose and/or excessive.
10
When a trial court has either sustained or overruled preliminary objections to a
declaration of taking, our scope of review is limited to determining whether the trial court abused
its discretion or committed an error of law. In re Condemnation by Beaver Falls Municipal
Authority, 960 A.2d 933, 940 (Pa. Cmwlth. 2008).
11
For the first time on appeal, BVA contends that the declaration of taking was deficient
in failing to sufficiently and accurately describe the subject properties. BVA also contends that
the Township was not authorized to:
(1) take the access easement because it is a public road under the
Donated and Dedicated Property Act, Act of December 15, 1959,
P.L. 1772, as amended, 53 P.S. §§ 3381–3386;
(2) modify the access easement because it is a public road that can
only be modified by a court of common pleas, pursuant to Section
18 of the General Road Law, Act of June 13, 1836, P.L. 551, 36
P.S. § 1981;
(3) take the sewage easement for a private purpose, pursuant to
Section 2501 of the Pennsylvania Second Class Township Code,
53 P.S. § 67501; and
(4) take the drainage easement for a private purpose, pursuant to
Section 2702 of the Second Class Township Code, 53 P.S. §67702.
(Footnote continued on next page…)
17
A.
Townships of the second class, like the Township here, possess the
authority to condemn private property for appropriate public uses under The
Second Class Township Code. Pennsylvania’s Eminent Domain Code12 provides
the “complete and exclusive procedure and law to govern all condemnations of
property. . . .” 26 Pa.C.S. § 102(a). Section 306(a)(3) of the Eminent Domain
Code provides, in relevant part:
(3) Preliminary objections shall be limited to and shall be
the exclusive method of challenging:
(i) The power or right of the condemnor to
appropriate the condemned property unless it has been
previously adjudicated.
(ii) The sufficiency of the security.
(iii) The declaration of taking.
(iv) Any other procedure followed by the
condemnor.
26 Pa.C.S. § 306(a)(3). “Land may be taken only to the extent reasonably required
by the public purpose for which the power is exercised, else it will be overturned
(continued…)
Because these issues were not raised in BVA’s preliminary objections before the trial court, they
are waived. See 26 Pa.C.S. § 306(b) (“Waiver.--Failure to raise by preliminary objections the
issues listed in subsection (a) shall constitute a waiver. Issues of compensation may not be
raised by preliminary objections.”).
12
26 Pa.C.S. §§ 101–1106.
18
as excessive.” Reading Area Water Authority v. Schuylkill River Greenway
Association, 100 A.3d 572, 578 (Pa. 2014) (citation omitted).
Pennsylvania’s Property Rights Protection Act (PRPA) prohibits
condemnations of private property for private use, except under certain specified
circumstances. It provides:
(a) Prohibition.--Except as set forth in subsection (b),
the exercise by any condemnor of the power of eminent
domain to take private property in order to use it for
private enterprise is prohibited.
(b) Exception.--Subsection (a) does not apply if any
of the following apply:
***
(2) The property is taken by, to the extent the party
has the power of eminent domain, transferred or leased to
any of the following:
***
(iii) A private enterprise that occupies an
incidental area within a public project, such as retail
space, office space, restaurant and food service facility or
similar incidental area.
(3) There is, on or associated with the property
taken, a threat to public health or safety.
***
(9) The property is used or to be used for any road,
street, highway, trafficway or for property to be acquired
to provide access to a public thoroughfare for a property
which would be otherwise be inaccessible as the result of
19
the use of eminent domain or for ingress, egress or
parking of motor vehicles.
26 Pa.C.S. § 204. Our Supreme Court has held that the PRPA is more restrictive in
scope than preexisting constitutional protections against the state’s power of
eminent domain. Reading Area Water Authority, 100 A.3d at 583.
As the trial court found, the PRPA does not apply here because the
condemnation falls within the exceptions set forth above. First, the condemnation
is needed to construct a “road, street, highway, [or] trafficway[.]” 26 Pa.C.S. §
204(b)(9). To whatever extent some portion of the condemned land not used for
the Connector Road will, after the condemnation, be occupied by Carlino, that
occupation is nothing more than “an incidental area within a public project, such as
retail space, office space, restaurant and food service facility or similar incidental
area.” Id. at § 204(b)(2)(iii). Again, this is within another exception to the PRPA.
Finally, the land taken by the Township that is not to be used exclusively as a
paved road is being taken in order to manage its stormwater obligations and to
avoid the threat to public safety that will be caused by the location of the existing
access easement once the Connector Road is built – a third exception to the PRPA.
Id. at § 204(b)(3).
Even though the PRPA does not apply, we must still examine whether
the taking violates the constitutional provision that outlaws takings that are not
primarily for a public purpose. “Under the Constitution, land may only be taken
without the owner’s consent if it is taken for a public use. The question of what
constitutes a public use is highly fact-dependent.” Reading Area Water Authority,
20
100 A.3d at 580. It is beyond well settled that a “taking does not []lose its public
character merely because there may exist in the operation some feature of private
gain, for if the public good is enhanced it is immaterial that a private interest also
may be benefited.” In re Legislation Route 62214, Section 1-A, 229 A.2d 1, 3 (Pa.
1967) (quotation omitted). Roads, in particular, “almost always benefit the owners
of the land through which they are laid out, and are often constructed at the request
of individuals [] but it has never been held that the laying out of a highway [] is
invalid on that account.” Id.
Condemnees bear the burden of proof in sustaining preliminary
objections. In re Condemnation of Real Estate by Borough of Ashland, 851 A.2d
992, 996-97 (Pa. Cmwlth. 2004). The same can be said for establishing fraud,
collusion, arbitrariness, bad faith or an abuse of power or discretion. In re School
District of Pittsburgh, 244 A.2d 42 (Pa. 1968). This burden is a “heavy” one and
must overcome the strong presumption that the condemnor has acted properly.
Appeal of Waite, 641 A.2d 25 (Pa. Cmwlth. 1994).
B.
While admitting that part of the taking is for the Connector Road,
BVA points out that the majority of the L&R Property being condemned will be
used for stormwater facilities, some of which may be used by Carlino to manage
stormwater from its development. Furthermore, a fraction of the access easement
will be renounced by the Township altogether, and the present Carlino Plan calls
for development on that area, including approximately one-third of a proposed
21
bank site and eight parking spaces. Simply put, BVA is challenging the purpose
and scope of the taking.
In one fashion or another, all of the above assertions rely on Ulrich’s
expert testimony opining that the Connector Road is not necessary and that taking
of the stormwater basin and access easements are excessive. However, multiple
fact and expert witnesses disagreed with Ulrich on those very issues. Various
witnesses testified that the intersection of Route 322 and North Guthriesville Road
is dangerous under existing conditions due to the configuration of the roadway and
the physical features of the land at the intersection. Padula and Dobson also
disagreed with Ulrich as to the necessary size of the detention basin located on the
L&R Property, both testifying that the Connector Road construction dictated its
size.
Accordingly, what we have here is competing testimony from Ulrich
and all other expert and fact witnesses, and unfortunately for BVA, the trial court
found that Ulrich’s “testimony made clear that his opinions were based on
assumptions and guesswork” and assigned his testimony “minimal weight.” (Trial
Court Opinion at 26, 41.) We will not disturb the trial court’s credibility
determinations or reweigh the evidence on appeal.13
13
For similar reasons, we reject BVA’s contention on appeal that the trial court
capriciously disregarded Ulrich’s testimony.
22
In any event, the trial court found that the taking served a public
purpose, was not excessive, and fell within exceptions of the PRPA, and that any
benefit received by Carlino was incidental at best. As the trial court cogently
explained:
During seven days of hearings, multiple witnesses
confirmed that the intended purpose and the actual
outcome of the condemnation will be for the construction
of a road connecting North Guthriesville Road and
[Route 322] and support facilities necessary for that road.
The [d]eclaration of [t]aking states that the condemnation
is for this purpose. Multiple witnesses testified that the
Connector Road is important to the Township because it
will alleviate traffic at the existing intersection of [Route
322] and North Guthriesville Road, which has been the
site of multiple accidents. Chief Kocsi provided
evidence of multiple accidents at the intersection, some
serious enough to result in hospitalization. The
Township anticipates that the intersection will become
more dangerous over time due to increased development.
Witnesses for both sides testified that drivers are already
using the BVA Development as a cut-through to avoid
the intersection, demonstrating a public interest in
routing traffic away from the intersection. The
Connector Road is a road that will be open to the public,
which is a sufficient public purpose to justify
condemnation.
***
[T]he evidence suggests that the Township cannot allow
the existing access easement to remain once it routes the
Connector Road to [Route 322] as planned. All
witnesses, including [BVA’s] witnesses, agree that
PennDOT regulations do not permit two egresses onto
Route 322 in such close proximity. Neither can the
Township allow the existing access easement to continue
as an unpaved access easement, since doing so allows the
holder of the easement to exercise its right of access in
23
the future, which would be contrary to PennDOT policy
and would create a dangerous traffic pattern.
Carlino’s original design called for the Connector Road
to follow the access easement and exit onto [Route 322]
at the present signalization. Under this plan, Carlino’s
bank pad and parking were entirely outside the BVA’s
easements, and could be built by right[,] and without
Township assistance. [Heinrich], Township traffic
engineer and transportation planner, insisted that the
location of the bank pad site and Connector Road be
reversed. [He] testified that doing so was necessary to
maximize the distance between signals along [Route
322], to avoid an unsafe traffic pattern within the bank
parking lot, and to align the Connector Road with the
property boundary, which is a traffic engineering best
practice. The result of the relocation is that although a
fraction of Carlino’s proposed bank and some parking
will be located on land that is presently a BVA access
easement, Carlino receives no net benefit. But for the
Township’s request that the Connector Road be moved,
Carlino would have the right to erect precisely the same
bank, as was proposed and approved for [in an earlier
development plan made by a previous developer].
With respect to the L&R P[roperty], there is no evidence
that the Township’s taking of the L&R [Property] was
affected by Carlino’s hope that it would be able to use
that site for stormwater management. Both Mr. Padula
and Mr. Dobson testified that, regardless of Carlino’s use
of the Township’s stormwater facilities, both the drain
pipe and the stormwater detention basin would remain
the same size and in the same location.
The evidence wholly supports the conclusion that the
condemnation is intended for the construction of the
Connector Road. The PRPA does not apply to the
project because the condemnation is intended to be used
to construct a “road, street, highway, [or] trafficway
[ . . . . 26 Pa.C.S. § 204(b)(9).] To the extent some land
will be occupied by Carlino, that occupation is nothing
more than “an incidental area within a public project,
such as retail space, office space, restaurant and food
24
service facility or similar incidental area”[,] which is also
an exception to the PRPA. [26 Pa.C.S. § 204(b)(2)(iii).]
Finally, the land the Township is taking that is not to be
used exclusively as a paved road is being taken to
manage its stormwater obligations and to avoid the threat
to public safety that will be caused by the location of the
existing access easement once the Connector Road is
built, which is a third exception to the PRPA. [26
Pa.C.S. § 204(b)(3).]
(Trial Court Opinion at 24, 27-28.)
For the reasons stated above, BVA failed to meet its heavy burden of
demonstrating that the taking is for a private purpose, excessive, and/or in bad
faith.14
14
BVA also contends that the Township condemned its property in bad faith because it
primarily serves Carlino’s private interests. To this end, BVA contends that the trial court erred
by capriciously disregarding Ulrich’s testimony that the taking was unnecessary and/or excessive
as well as the fact that meetings were held between Carlino and some members of the Board of
Supervisors. Again, the trial court did not ignore Ulrich’s testimony but gave it “minimal
weight” because his “testimony made clear that his opinions were based on assumptions and
guesswork.” (Trial Court Opinion at 26, 41.) What BVA also ignores is that the proposal for the
Connector Road predates Carlino’s development. In 2005 or 2006, the Township entertained a
plan from a former developer that proposed constructing a development similar to that of the
Carlino Plans, which included a Connector Road. In addition, Carlino's original design called for
the Connector Road to exit onto Route 322 at the present signalization. Under this plan,
Carlino's bank and parking lot were entirely outside the Brandywine Village easements and
could be built by right, without Township assistance. It was only at the Township’s insistence
that the Connector Road be constructed at the present location. As to the meetings between
Carlino and the Township that BVA contends establish collusion and bad faith, BVA has only
established that there were meetings between Carlino and the Township to coordinate the
construction of a public road, which is obviously not evidence of bad faith.
25
C.
BVA next contends that the Township lacked legal authority and/or
jurisdiction to file the declaration of taking. BVA first contends that the
Township’s taking is not permitted under Section 2306 of the Second Class
Township Code, 53 P.S. § 67306, which provides, “The width of the right-of-way
of a public road in townships shall not be less than thirty-three feet or more than
one hundred and twenty feet . . . .” To this, we repeat the trial court’s words, “This
claim is disingenuous at best. In fact, as the plans entered into evidence make
clear, the Township is not building a 214.76 foot wide road but, instead, is
constructing a fifty-foot-wide right-of-way. The balance of the condemned
property represents the remainder of BVA’s access easement.” (Trial Court
Opinion at 38.)
BVA also challenges the Township’s ability to take ten feet in width
of BVA’s property along Route 322 for the creation of a new deceleration lane for
the proposed Connector Road. According to BVA, the Township’s taking is in
direct violation of Section 3 of The Administrative Code of 1929, 71 P.S. § 512,
Section 911 of the State Highway Law, 36 P.S. § 670-911, and 87 Pa. Code §
441.8(j)(5). As the trial court already explained, these provisions are irrelevant to
the Township’s power to condemn.
Section 3(a)(10) of the Administrative Code provides that PennDOT
shall “have exclusive authority and jurisdiction over all State designated
highways[.]” 71 P.S. § 512(a)(10). Section 911 of the State Highway Law only
relates to widening state highways and not to the Township’s power to condemn.
26
36 P.S. § 670-911.15 PennDOT’s regulation provides, “[i]f an auxiliary lane must
be located in front of property of another person, the applicant shall be required to
secure the approval of the other person or indemnify the Commonwealth against
any action which the other person may bring against the Commonwealth.” 67 Pa.
Code § 441.8(j)(6).
Clearly, what BVA is attempting to do is challenge the Township’s
compliance with certain statutes and regulations. This is not within the scope of
Section 306 of the Eminent Domain Code, but rather is collateral to the
15
Section 911 of the State Highway Law provides:
Whenever a State highway is constructed and the State pays a
portion of the cost, and the county, or township, or borough, pays a
portion of the cost, or the State pays the entire cost, and it is
deemed advisable to widen the State highway beyond the width as
laid out and ordered by the secretary or other body having
authority over the same, the county and township, or borough,
jointly, or the township or borough, may increase the width of the
State highway, including the width of right of way, with consent of
the secretary or other body having charge of the construction of
said State highway. An increase in the width of right of way may
be by the adoption of the official plan of the Department of
Highways by the township or borough. The cost of such additional
width shall be borne jointly by the county and township, or
borough, or wholly by the said township or borough, as the case
may be. Authority is hereby given the several counties through
their commissioners and the several townships and boroughs
through their proper officers, to enter into agreement providing for
the additional width of the State highway, in accordance herewith.
Such additional width shall be constructed under the supervision of
the department, and according to its plans and specifications.
36 P.S. § 670-911.
27
condemnation proceedings. Appeal of Gaster, 556 A.2d 473, 478 (Pa. Cmwlth.
1989). Again, Section 306 of the Eminent Domain Code provides that “the
condemnee may file preliminary objections to the declaration of taking. . . .” 26
Pa.C.S. § 306(a) (emphasis added). These preliminary objections are limited to
challenges to: (i) the power of the condemnor to take the condemned property;
“(ii) [t]he sufficiency of the security[;] (iii) [t]he declaration of taking[; and] (iv)
[a]ny other procedure followed by the condemnor.” 26 Pa.C.S. § 306(a)(3)(i)-(iv)
(emphasis added). Objections that do not fall within those described above are not
proper subjects for preliminary objections to a taking, but are collateral in nature
and will not be considered. In re Condemnation of Property Situate in Perry
Township, 938 A.2d 517, 521 (Pa. Cmwlth. 2007).
Accordingly, for the foregoing reasons, we affirm the trial court’s
order overruling BVA’s preliminary objections.
__________________________________
DAN PELLEGRINI, Senior Judge
28
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Condemnation of Fee Simple Title :
to 0.069 Acres of Vacant Land and :
Certain Easements Owned by :
Brandywine Village Associates :
(UPI#30-5-226) and Condemnation :
of Fee Simple Title to 1.93 Acres :
and a Temporary Grading Easement :
Over 0.26 Acres of Vacant Land :
Owned by L&R Partnership and :
John R. Cropper (UPI#30-2-47) for a :
Public Sheet :
: No. 1409 C.D. 2017
Appeal of Brandywine Village :
Associates, L&R Partnership and :
John R. Cropper :
ORDER
AND NOW, this 2nd day of July, 2018, it is hereby ordered that the
order of the Court of Common Pleas of Chester County in the above-captioned
matter is affirmed.
__________________________________
DAN PELLEGRINI, Senior Judge