The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dr. Nancy O. Brown :
: No. 235 C.D. 2018
v. : Argued: December 11, 2018
:
Pennsylvania Turnpike Commission, :
Appellant :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: January 7, 2019
In this eminent domain case involving an alleged de facto taking by
stormwater discharge, the Pennsylvania Turnpike Commission (Condemnor)
appeals an order of the Court of Common Pleas of Montgomery County 1 (trial
court) that overruled Condemnor’s preliminary objections to Dr. Nancy O.
Brown’s (Condemnee) petition for appointment of a board of viewers under
Section 502(c) of the Eminent Domain Code (Code), 26 Pa. C.S. §502(c). The trial
court determined that Condemnor condemned, by means of a permanent
stormwater easement, the rear undeveloped portion of Condemnee’s property
located at 2303 Hickory Road, Plymouth Meeting, Pennsylvania, and that the date
of the de facto taking was August 6, 2014, and it directed the appointed board of
viewers to conduct a hearing to determine just compensation or other damages
under the Code. Upon review, we affirm.
1
The Honorable Carolyn Tornetta Carluccio presided.
I. Background
A. Generally
Condemnee owns and operates Hickory Veterinary Hospital, a large
veterinary hospital located on Hickory Road near the intersection of the
Pennsylvania Turnpike and its Northeast Extension (collectively, the Turnpike).
The hospital is a 24-hour, full-service, small-animal hospital offering a wide range
of veterinary services. In 2012-14, Condemnor began a project to widen 10 miles
of the Turnpike, including the portion that abuts Condemnee’s property. As a
result of the widening project, Condemnee’s property is now bounded to the west
by the Turnpike and a retaining wall.
Condemnee’s property is shaped like a hockey stick adjacent to the
Turnpike. See Expert Report of Gregory C. Newell, P.E. (Newell Report),
7/12/17, Ex. No. 1; Supplemental Reproduced Record (S.R.R.) at 370a. The
hospital is located in the developed area at the northern end of the handle of the
stick. Toward the upper portion of the stick is an auxiliary gravel parking area. Id.
The undeveloped area below and south of the gravel parking area is
the area affected by increased and now concentrated stormwater discharge from the
Turnpike. This area is undeveloped, consisting of brush and other vegetation. The
affected area is bounded to the west by the Turnpike retaining wall and to the east
by Plymouth Creek.
Below and to the south of the affected area is the rear of the property,
which extends in an easterly direction. Condemnee intends to expand her
2
veterinary facilities by constructing a canine rehabilitation facility (rehab facility)
on this part of her property. Plymouth Creek ultimately crosses this part of the
property.
In order to reach the planned rehab facility from the existing hospital,
a driveway would need to be constructed from the developed area through the
affected area to reach the rear of the property. Although not relevant to the
stormwater discharge problems at issue in this case, the proposed driveway must
also cross Plymouth Creek.
Condemnor’s construction project significantly changed the grade of
the Turnpike. The widening of the roadway increased the stormwater flow, which
necessitated the construction of 10 water detention basins along the Turnpike to
keep the water flow at pre-construction levels.
However, Condemnor did not place a water detention basin in the area
of the project abutting Condemnee’s property. Rather, Condemnor constructed a
riprap swale (a stone-filled U-shaped channel) to collect stormwater runoff from
three pipes running under the retaining wall and then discharge the runoff from the
swale directly into the affected area of Condemnee’s property. By Condemnor’s
own calculations, the post-construction stormwater flow onto Condemnee’s
property from the Turnpike increased by 500%.
3
B. Temporary Construction Easement; De Jure Taking
In a separate proceeding between the parties before a different trial
judge, Condemnor formally condemned a temporary construction easement to
build a temporary erosion and sedimentation basin on Condemnee’s property to
contain sediment and runoff from the construction project. At the conclusion of
the project, Condemnor removed the sedimentation basin, restored the property
and vacated the temporary construction easement.
Following a week-long trial in June 2017, a jury awarded Condemnee
compensation for the de jure taking. In that proceeding, the parties resolved all
damage issues regarding the construction easement.
C. Petition for Appointment of Board of Viewers
Meanwhile, in January 2017, Condemnee filed a petition for
appointment of a board of viewers alleging the de facto condemnation of a
permanent easement as a result of the increased stormwater discharge. Condemnee
sought damages related to the alleged de facto taking, including consequential
damages under Section 714 of the Code, 26 Pa. C.S. §714. The trial court granted
Condemnee’s petition and appointed a board of viewers to determine
compensation and other damages.
In response, Condemnor filed preliminary objections alleging
noncompliance with the requirements of Section 502(a) of the Code, 26 Pa. C.S.
§502(a), waiver, and statute of limitations.
4
D. Hearing on Preliminary Objections
In July 2017, the month following the jury trial on the de jure
temporary taking, the trial court held a hearing on Condemnor’s preliminary
objections to the petition alleging a de facto taking. See Tr. Ct. Hr’g, 7/17/17, at 1-
132; Reproduced Record (R.R.) at 154a-285a. In its opinion in support of its order
overruling Condemnor’s preliminary objections, the trial court noted that it
accepted Condemnee’s testimony as credible. Condemnee owns and runs the
Hickory Veterinary Hospital on her property. She purchased the property in 1983.
Condemnee testified that prior to the Turnpike widening project, the rear of her
property, where she planned to build the rehab facility, did not flood. However,
after Condemnor completed the project, the rear of her property floods even during
modest rainfalls. Condemnee further testified that prior to the project, there was
one feasible spot to build an access road to the rear of her property. However, after
the project and continuous flooding that resulted, it was no longer feasible to
construct the access road.
Condemnee testified that the flooding interferes with her access to the
rear of the property and her use and enjoyment of the property because she planned
to expand her practice to include the rehab facility. In addition, the flooding is
damaging the surface support of her property through erosion, destruction of plant
life, and the creation of storm water tributaries arising from the paths of the water
flow. In particular, the stormwater erosion directly crosses the area where
Condemnee planned to construct the access road to the rear of her property. See
Newell Report, Exs. Nos. 3, 4, 13; S.R.R. at 372a, 373a, 378a.
5
The trial court also found the expert report2 of Condemnee’s
engineering expert, Gregory C. Newell, P.E. (Engineer), to be very credible.
Engineer’s report explained that the swale discharge, 650 feet south of Hickory
Road, is a concentrated discharge located right at Condemnee’s property line.
Stormwater enters Condemnee’s property from the swale and flows south parallel
to the property line with the Turnpike to an area where a small pre-project pipe
also discharges onto the property. See Newell Report, Ex. No. 3; S.R.R. at 372a.
The combined discharge from the large swale and the smaller pre-
project pipe flows east/southeast across Condemnee’s property to a tributary. See
Newell Report, Ex. No. 4; S.R.R. at 373a. During a storm, the combined
swale/pipe discharge constitutes more than a 500% increase over the pre-project
pipe discharge.
Near the end of project construction, Condemnor removed a
temporary erosion and sedimentation basin it constructed on Condemnee’s
property pursuant to a temporary construction easement. Condemnor also graded
and lined the swale to its permanent condition. On this date, August 14, 2014, the
unmitigated stormwater discharges from the swale began. This resulted in the
creation of a continuous and permanent flooding condition on Condemnee’s
property.
2
See Expert Report of Gregory C. Newell, P.E. (Newell Report), 7/12/17, 1-71,
Reproduced Record (R.R.) at 287a-357a; see also Exhibits from Newell Report, Supplemental
Reproduced Record (S.R.R.) at 370a-75a.
6
The trial court also accepted Engineer’s testimony as persuasive.
Engineer testified that before the project, stormwater flowed onto Condemnee’s
property and dispersed in heavy brush, weeds and briers. Nothing concentrated the
water flow or created a defined channel. As a result, at that time stormwater had
little or no impact on Condemnee’s property.
Condemnor’s project increased the volume of stormwater discharge
by 500% and concentrated the discharge at a specific point. Flooding and erosion
began to occur with even the smallest storms. A clear erosion channel now exists.
Engineer further testified that the increased stormwater flows interfere
with safe access to the rear of Condemnee’s property. The concentrated flow
would come barreling down the only feasible access road at a very high velocity
and cause significant damage to any development on the rear property. Engineer
testified this flooding is a permanent condition resulting from Condemnor’s
widening project. Engineer also testified that as a result of steep slopes and a
nearby stream, there is no feasible way to construct an access road to the rear of the
property other than in the area depicted in Exhibit No. 13 of his expert report. See
Newell Report, Ex. No. 13; S.R.R. at 378a.
Condemnee and Engineer also persuaded the trial court that
Condemnee was planning the construction of the proposed rehab facility on the
rear of her property in response to the ongoing expansion of her veterinary
practice. Condemnee employs 19 veterinarians, 4 surgeons and 94 staff members.
7
Condemnee further testified that she expanded the hospital six times. The hospital
has approximately 18,000 active patient files and operates a 24/7 emergency clinic.
Condemnee also testified there is a strong demand for a larger canine
rehab facility in the area, and there is no such facility within a 30-mile radius of the
hospital. The hospital’s current one-room rehab center is much too small and can
accommodate only one patient at a time. The proposed rehab facility would be
able to treat multiple patients at one time and would have a pool and an underwater
treadmill.
In addition, Engineer testified that Condemnee planned to build the
new rehab facility long before the Turnpike project began. In particular,
Condemnee and Engineer began working on the plan before the Turnpike project
started. Engineer further opined, as someone experienced in land development,
that Condemnee would have been able to obtain all the permits and approvals
necessary to construct the rehab facility.
E. Overruling of Preliminary Objections
In January 2018, the trial court filed an order overruling Condemnor’s
preliminary objections. The trial court determined that Condemnor “de facto
condemned, via a permanent stormwater easement, the rear undeveloped portion of
Condemnee’s property ….” Tr. Ct. Order, 1/24/18, ¶2. The trial court also
directed the appointed board of viewers to conduct a hearing to determine just
compensation and consequential damages. Id., ¶4.
8
F. Condemnor’s Appeal; Statement of Errors
Condemnor filed a notice of appeal. The trial court issued an order
directing Condemnor to file a Concise Statement of Errors Complained of on
Appeal. R.R. at 146a. Condemnor complied, alleging: Condemnee introduced no
evidence of any legitimate issue as to lateral or surface support; Condemnee
introduced inadequate evidence of erosion or other impact to her property;
Condemnee introduced no evidence of any restriction on her ability to make use of
her property as a result of Condemnor’s activities; Condemnee introduced no
evidence that any proposed rehab facility would ever be constructed on the rear of
her property, or that any use at all would be made of the woodlands allegedly
affected by Condemnor’s construction activities; Condemnee introduced no
evidence of any market need for the proposed rehab facility; to the extent
Condemnee established occasional flooding, this does not establish a de facto
taking as a matter of law; and in the absence of any actual utilization of the
property in question, there can be no compensable interference with the use of that
property. R.R. at 150a-51a.
G. Trial Court’s Opinion in Support of Order
In its opinion in support of its order, the trial court noted that
Condemnor did not obtain its own expert or present any witnesses to counter
Condemnee’s testimony and Engineer’s report and testimony. Rather, Condemnor
relied solely on its cross-examination of Engineer. See N.T. at 74-91; R.R. at
227a-44a. However, the trial court found Condemnor’s cross-examination
unpersuasive and ineffective. Tr. Ct., Slip Op., 5/23/18, at 20.
9
In addressing Condemnor’s assignment of errors, the trial court
explained that it never determined the flooding at issue was occasional or sporadic.
Rather, based on the evidence, including videos and testimony from Condemnee
and Engineer, the trial court determined the flooding at issue was continuous and
permanent. Id. at 21.
The trial court also rejected Condemnor’s allegation that Condemnee
presented no evidence that she would have actually built a rehab facility on the rear
of the property. To the contrary, the trial court indicated that plans for the rehab
facility existed prior to the construction project and revealed Condemnee needed to
build the new rehab facility given the limited rehab facility currently in use. Id. In
particular, the trial court explained that Condemnee’s history of expanding the
veterinary hospital in stages, with the proper approvals, weighed in favor of a
finding that construction of the new rehab facility was not speculative. Id.
Condemnor appeals.3
II. Issues
Condemnor presents three issues for our review. First, Condemnor
contends the trial court erred in finding a de facto taking occurred where there is no
dispute that the area in question is entirely undeveloped at present and therefore
any stormwater discharge does not impact Condemnee’s existing operations.
3
Our review of a trial court’s order overruling or sustaining preliminary objections to a
petition for appointment of a board of viewers is limited to determining whether the trial court’s
findings of fact were supported by substantial evidence and whether the trial court committed an
error of law or an abuse of discretion. Colombari v. Port Auth. of Allegheny Cty., 951 A.2d 409
(Pa. Cmwlth. 2008).
10
Second, Condemnor asserts the trial court erred in finding a de facto taking
occurred because Condemnee did not establish any present plans or intent to
develop the rear of the property in any respect. Third, Condemnor argues the trial
court erred in finding a de facto taking occurred where Engineer testified there
were engineering solutions available as part of the construction of any hypothetical
access road that may be constructed to serve any hypothetical canine rehab facility
located on the rear portion of the property.
III. Discussion
A. Taking of Undeveloped Property
1. Argument
Condemnor contends that its discharge of stormwater across an
undeveloped, wooded section of Condemnee’s property did not result in a de facto
taking. Here, the area in question lies to the south of Condemnee’s auxiliary
gravel parking lot, which is located to the south of the hospital complex.
Condemnor asserts this is raw, undeveloped land. The only use to which this land
has ever been put was for Condemnor’s temporary construction easement and
sedimentation basin. Following completion of its five-year construction project,
Condemnor removed the sediment trap and restored the property to its previous
condition. See N.T. at 51; R.R. at 204a.
Consequently, even assuming the stormwater discharge is greater than
it was pre-construction, Condemnor argues there is absolutely no evidence that the
post-construction discharge causes Condemnee any meaningful or compensable
damage or harm at the present time. Condemnor asserts our decision in McMaster
11
v. Township of Bensalem, 161 A.3d 1031 (Pa. Cmwlth. 2017), is controlling. In
McMaster, the property owners alleged that the township, through its construction
activities, flooded an undeveloped portion of their property near their residence.
All the flooding in McMaster occurred in a wooded area that the owners partially
cleared for such things as a horseshoe set-up for a picnic, mini-bike riding and a
tree fort for their children. The owners did not view this property as part of their
lawn. The trial court sustained the township’s preliminary objections. It
determined the flooding did not constitute a de facto taking because the flooding
did not substantially deprive the owner of the use and enjoyment of the property.
The flooding in McMaster did not interfere with the property owners’
preexisting use of their house or lawn. The owners did not show that they used the
wooded area in any way that the flooding affected. Absent any showing of
interference with the use of the flooded, wooded property, the trial court concluded
that the owners failed to establish that the township’s stormwater redirection
established a de facto taking. Id.
Ultimately, this Court affirmed. Although the township diverted
water from its natural channel and caused substantial and recurring flooding on a
part of the owners’ property, we determined that neither the nature of the
township’s conduct nor the damage to property rose to the level of a de facto
taking. We also observed that the discharge onto the owners’ property resulted
from the township’s negligence rather than an intentional discharge, and that the
flooding was ultimately abated.
12
Specifically, this Court reasoned (with emphasis added):
The [t]ownship’s flooding did not interfere with
[owners’] use of their house or lawn. [Owners] did not
show that they actually used the wooded area of the
[p]roperty in any way that was affected by the flooding
or that the flooding prevented any development of that
area that would have otherwise been likely to occur.
[Owners] showed only some sporadic use of the cleared
area that may have been affected by the flooding and
some damage to trees from the flooding. In addition, the
fact that the 2010 pipe installation solved the flooding
showed that the flooding was abatable and preventable,
although this remediation was something that only the
[t]ownship could do.
McMaster, 161 A.3d at 1037. Condemnor asserts McMaster is nearly on all fours
with the present case and is therefore controlling. As such, Condemnor argues the
trial court erred in finding a de facto taking occurred.
2. Analysis
In order to establish a de facto taking, a property owner must show:
(1) the condemnor has the power to condemn land under eminent domain
procedures; (2) exceptional circumstances have substantially deprived her of the
use and enjoyment of her property; and (3) the damages sustained were the
immediate, necessary and unavoidable consequences of the exercise of eminent
domain. In re: Mountaintop Area Joint Sanitary Auth., 166 A.3d 553 (Pa. Cmwlth.
2017). Here, the trial court noted the first element was not at issue. Clearly,
Condemnor possesses the power to condemn the property at issue under eminent
domain procedures. Second, the trial court determined Condemnee presented
ample evidence that the flooding at issue substantially deprived her of the use of
13
her property. Third, the trial court determined that the damages sustained were the
immediate, necessary and unavoidable consequences of the exercise of eminent
domain power.
Where the evidence shows the flooding of land is the direct result of a
condemnor’s drainage plan, a de facto taking is established. Greger v. Canton
Twp., 399 A.2d 138 (Pa. Cmwlth. 1979) (citing Hereda v. L. Burrell Twp., 48
A.2d 83 (Pa. 1946)). In Hereda, the township constructed a drainage pipe under a
street, which immediately began flooding the plaintiffs’ property and frequently
resulted in the need for the plaintiffs to pump water from their basement of their
home. Prior to the installation of the drainage pipe, the plaintiffs were unaffected
by water or drainage from the street.
In Hereda, the Supreme Court reasoned that the township’s drainage
plan resulted in injury to the plaintiffs’ property. The plan accumulated and
directed water and sewage from the street into an artificial conduit and then
discharged it in volume onto plaintiffs’ property. The Hereda Court noted that
such injury was the direct, immediate, necessary and unavoidable consequence of
the exercise of the township’s conferred power and the township’s action in
implementing its drainage plan.
Here, the record supports the trial court’s finding of a de facto taking.
Condemnee testified that prior to the construction project, the rear of her property
did not flood. After Condemnor completed the construction project, the rear of
Condemnee’s property would flood during even modest rainfalls. In addition,
14
Condemnee testified that prior to the project, there was one feasible area to build
an access road to the rear of her property where she planned to construct the rehab
facility. However, because of post-project flooding, the proposed access road is no
longer feasible. See N.T. at 113-18; R.R. at 266a-71a.
Condemnee further testified she needs to have access to her entire
property as part of her planned expansion of her veterinary facilities and in case
she would need to sell the property, including the veterinary facilities. Id. On voir
dire examination, Condemnee qualified as an expert in veterinary medicine. N.T.
at 95-101; R.R. at 248a-54a.
On direct examination, Condemnee testified that her hospital’s
survival will be contingent on developing new strategies to meet the expectations
of pet owners for the best care available. N.T. at 103; R.R. at 256a. This includes
the need to develop the rear of the property as a new rehab facility with an access
driveway, a drop off and parking area, a treatment building, a caretaker’s
apartment and play/walking areas. Id. The current rehab facility consists of only
one room where only one patient can be treated at a time. N.T. at 107; R.R. at
260a; see also Expert Report of Nancy O. Brown, V.M.D., 7/13/17 (Brown
Report), Ex. A (“Need to Provide Canine Rehabilitation Services In the Rear of the
Hickory Veterinary Hospital”); S.R.R. at 369a. Condemnee testified she could
triple or quadruple the number of patients in rehab. N.T. at 107; R.R. at 260a.
The trial court also found Engineer’s testimony to be “extremely
persuasive” that there was a taking of Condemnee’s property. Tr. Ct., Slip Op., at
15
12. Engineer testified that prior to the construction, the stormwater coming off the
Turnpike was not an obstacle to development of the access road. N.T. at 22-23;
R.R. at 175a-76a. The water flowed through heavy brush, weeds and briers, where
it dispersed. N.T. at 23; R.R. at 176a. It had little or no impact on the property,
and there were no obvious signs of erosion or disruption of the property. Id. As
such, Engineer opined the stormwater flow prior to the Turnpike project would not
have impacted the proposed driveway. Id.
However, the Turnpike construction widened the paved area and
added a third travel lane in both directions. N.T. at 24; R.R. at 177a. The project
also raised the elevation of the Turnpike and installed a retaining wall and
extensive storm drainage facilities, including a number of drainage pipes and a
well-defined riprap swale. Id. Engineer explained that the Turnpike was much
higher than Condemnee’s property prior to the project construction and the grass
area sloped down toward the property line. It had roughly 40 to 50 feet to make up
a grade difference. N.T. at 26; R.R. at 179a. Therefore, when Condemnor widened
the roadway, it eliminated most of the grass area and added fill to build the new
roadway at the Turnpike level. Id. Condemnor constructed a large retaining wall
to support the added fill. Id.
To remove the stormwater from the roadway, Condemnor added
additional drainage pipes through the retaining wall that discharged into the U-
shaped riprap swale. N.T. at 28; R.R. at 181a. Eventually, the swale discharges
the stormwater directly onto Condemnee’s property at one specific point. N.T. at
29-30; R.R. at 182a-83a. Condemnor made no effort to disperse water at the point
16
of discharge. Id. As a result, there was a 500% increase in stormwater discharge
onto the property, which is highly concentrated at one point. N.T. at 31; R.R. at
184a.
Engineer further testified that as a result of the design of the swale
discharge, the stormwater will flow over the area where Condemnee planned to
build the access road. N.T. at 32-43; R.R. at 185a-96a. The concentrated water
flow would erode the surface support and destabilize the area, therefore interfering
with the design, construction and maintenance of the access road. Id. Engineer
further testified Condemnee could not build the access road anywhere else. N.T. at
44; R.R. at 197a.
The evidence cited above supports the trial court’s determination that
Condemnee established the flooding caused by Condemnor’s construction project
substantially deprived her of the use of her property by significantly restricting and
interfering with her ability to access and develop the rear of property, where she
intended to expand her veterinary facility to include a canine rehab facility. The
evidence also supports the trial court’s determination that the damages Condemnee
sustained were the immediate, necessary and unavoidable consequences of
Condemnor’s construction project, which intentionally diverted a greatly increased
and concentrated stormwater flow directly onto Condemnee’s property. As such
Condemnee’s evidence, found credible by the trial court, established a de facto
taking of the rear portion of Condemnee’s property. Hereda.
17
In addition, we reject Condemnor’s argument that our decision in
McMaster is controlling here, for the following reasons. To the contrary, we
conclude the circumstances in McMaster are significantly distinguishable from
those in the present case. In determining whether a de facto taking occurred, each
case turns on its own facts. In re: Borough of Blakely, 25 A.3d 458 (Pa. Cmwlth.
2011).
First, in McMaster, the trial court did not find a de facto taking where
the stormwater discharged onto a residential property and did not interfere with the
owners’ use of their house or lawn. Although the flooding in McMaster also
occurred in a wooded area, the owners did not show they actually made significant
use of the wooded area or that the flooding prevented any development of that area
that otherwise would have been likely to occur. In the current case, however, there
was significant evidence of the likely development of the flooded area. This point
will be discussed further below.
Second, when the township in McMaster initially redirected the
stormwater flow in 1988 or 1989, it mistakenly believed the stormwater flowed
into a bordering creek. The township never intended to discharge the stormwater
onto the owners’ property.
In the present case, however, Condemnor’s construction project
created a drainage system that intentionally discharged a greatly increased and
concentrated flow of stormwater onto the rear of Condemnee’s property.
18
Condemnee testified that a normal rainfall is now sufficient to cause flooding.
N.T. at 116; R.R. at 269a.
Third, in McMaster, the flooding was actually abated. In particular,
the township installed a new pipe in 2010 that resolved the flooding problem.
Here, however, the flooding is not abated, no specific plans for abatement were
presented, and there is expert testimony and a finding from the trial court that the
condition is permanent. This point will be discussed below.
In sum, given the factual differences between McMaster and the
present case, we reject Condemnor’s contention that McMaster is controlling.
B. Intention to Develop Property
1. Argument
Condemnor next contends the trial court erred in finding a de facto
taking occurred because Condemnee did not establish any present plans or intent to
develop the rear of the property in any respect. Condemnor asserts that during the
jury trial on the de jure taking for the temporary construction easement,
Condemnee alleged the stormwater issues precluded her development of the rehab
facility. However, Engineer conceded both in the de jure trial and the present trial
that nobody obtained, or even applied for, any permits for the construction of the
rehab facility.
Further, Condemnee testified that a need for the rehab facility existed
based on demographic studies she commissioned in 1991, regarding the need for
19
the rehab facility. See N.T. at 104-06; R.R. at 257a-59a. Condemnee admitted she
did not update the studies. N.T. at 106; R.R. at 259a. The trial court struck any
reference to the study as untimely. Id.
Summarizing, Condemnor points out that in both the de jure jury trial
and the present bench trial, Condemnee and Engineer conceded that she took no
actual steps to pursue the rehab facility. As such, the area of Condemnee’s
property at issue remains undeveloped. Therefore, in accord with McMaster, the
discharge of stormwater onto raw, undeveloped land cannot be considered a de
facto taking.
2. Analysis
In its opinion, the trial court rejected Condemnor’s contention that the
record contained no evidence showing that a canine rehab facility would ever have
been built on Condemnee’s property or that there is a market need for the same.
Tr. Ct., Slip Op., at 21. To the contrary, the trial court noted:
the record demonstrates that plans for such a facility had
been in place long before the Turnpike Project, and that,
[Condemnee] needed to build such a canine rehab facility
given her limited physical space to rehab all of her
patients. In addition, [Condemnee’s] history of
expanding the Veterinary Hospital in stages, and history
of obtaining the necessary variances, all weighed in a
finding that the eventual construction of such a facility
was not speculative.
Id.
20
The beneficial use of a property includes not only its present use but
all potential uses, including its highest and best use. Gaughen v. Dep’t of Transp.,
554 A.2d 1008 (Pa. Cmwlth. 1989) (citing Visco v. Dep’t of Transp., 498 A.2d 984
(Pa. Cmwlth. 1985)). The property owner bears the burden of proving that the
property is adaptable for a use other than its current use, and that there is a need for
this other use. Id. (citing Shillito v. Metro. Edison Co., 252 A.2d 650 (Pa. 1969)).
At the preliminary objection stage of a de facto taking case, evidence of highest
and best use is relevant to the issue of whether a de facto taking occurred, that is,
whether the condemnee’s property was so affected that the condemnee was
deprived of the beneficial use and enjoyment of the property’s highest and best
use. Appeal of Dep’t of Transp., 605 A.2d 1286 (Pa. Cmwlth. 1992).
Here, Condemnee sought to establish not an entirely different use, but
rather a more intensified version of the current professional use. She testified as to
her long-standing plans for expansion and the need for such expansion. See Brown
Report, Ex. A (“Need to Provide Canine Rehabilitation Services In the Rear of the
Hickory Veterinary Hospital”); S.R.R. at 369a (“A rehab center is needed for
Hickory Veterinary Hospital to achieve its highest and best use as a modern full-
service veterinary facility.”). Engineer also testified as to the long-standing plans
for such expansion and the adaptability for such expansion. The trial court
accepted this evidence.
More specifically, regardless of the stricken 1991 demographic
studies, the trial court noted that both Condemnee and Engineer provided
persuasive testimony that Condemnee planned to construct the proposed rehab
21
facility in response to the ongoing expansion of her veterinary practice.
Condemnee explained that the hospital has about 18,000 active files. N.T. at 97;
R.R. at 250a. The hospital employs 19 veterinarians. Id. Previously, Condemnee
expanded the veterinary facility six times. N.T. at 111; R.R. at 264a. She obtained
municipal approval for every expansion. Id.
Further, Engineer testified that Condemnee began implementing her
master plan 10 to 15 years ago. N.T. at 22; R.R. at 175a. The plans for the rehab
facility go back to that time. Id. Condemnee proceeded in stages; she took care of
the front of the property first, which involved the clinical practice. Id.
Engineer further testified Condemnee began planning construction of
the access road three years ago. N.T. at 21; R.R. at 174a. Also, Engineer opined
that it is highly likely that Condemnee would have been able to obtain all the
permits and approvals necessary to construct the rehab facility. N.T. at 91; R.R. at
244a; see also Newell Report at 21; R.R. at 307a.
In eminent domain cases, questions concerning witness credibility and
conflicts in the evidence are for the trial court to resolve. In Re: Condemnation by
Beaver Falls Mun. Auth. for Penndale Water Line Extension, 960 A.2d 933 (Pa.
Cmwlth. 2008). If sufficient evidence supports the trial court’s findings as fact-
finder, we will not disturb these findings. Id. In addition, we may not disturb a
trial court’s credibility determinations. Id.
22
Here, the trial court credited Condemnee’s testimony and Engineer’s
testimony that Condemnee definitely planned to build an access road and rehab
facility on the rear of the property, and that it was highly likely Condemnee would
have been permitted to do so. Because the trial court’s findings and credibility
determinations are supported by the evidence, we may not disturb them. Beaver
Falls Mun. Auth.
C. Abatement of Stormwater Problems
1. Argument
Condemnor next contends the trial court erred in finding a de facto
taking occurred where Engineer testified there were engineering solutions available
as part of the construction of any hypothetical access road and canine rehab facility
located on the rear of the property. Citing McMaster, Condemnor argues that a
critical factor weighing against the determination of a de facto taking is that any
harm arguably suffered by a property owner may be readily abatable. Condemnor
asserts the stormwater flow could be addressed, and easily so, through engineering
solutions such as a culvert. On cross-examination, Engineer acknowledged that he
must design a driveway to cross Plymouth Creek, a tributary on Condemnee’s
property, by building a bridge over it or installing a culvert. N.T. at 85-86; R.R. at
238a-39a. Condemnor asserts that the stormwater discharge is less of an
engineering challenge than crossing Plymouth Creek.
Essentially, Condemnor argues that Engineer conceded that there
might be a solution to the stormwater problem that would permit driveway
construction. Therefore, because the stormwater problem is readily abatable,
23
Condemnor asserts that McMaster supports a conclusion that no de facto taking
occurred.
In response, Condemnee asserts Condemnor waived the issue of
whether the stormwater problem is abatable by failing to raise it in its Pa. R.A.P.
1925(b) Concise Statement of Errors Complained of on Appeal. See R.R. at 150a-
53a. Issues not included in the Concise Statement of Errors or not raised in
accordance with the provisions of Rule 1925(b)(4) are waived. Mountaintop Area
Joint Sanitary Auth.
Alternatively, Condemnee asserts Engineer could not abate the
stormwater problem because the source of the stormwater problem is on
Condemnor’s side of the property. Moreover, Condemnor presented no evidence
that Engineer could abate the stormwater problem.
In addition, Condemnee asserts Condemnor mischaracterized
Engineer’s testimony on cross-examination. Engineer never conceded that the
stormwater problem caused by Condemnor’s construction project was abatable.
Finally, Condemnee argues that even if Condemnor presented
evidence that the stormwater problem could be abated, the trial court determined
that the flooding issue was continuous and permanent. See Tr. Ct., Slip Op. at 21.
Condemnee asserts this finding is supported by the evidence.
24
2. Analysis
We first reject Condemnee’s contention that Condemnor waived the
issue of whether the stormwater problem is abatable by failing to raise it in its Pa.
R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal.
Rule 1925(b)(4)(v) provides that each error identified in the Concise
Statement of Errors will be deemed to include every subsidiary issue contained
therein that was raised in the trial court. The presence of a possible engineering
solution to the stormwater problem can be a factor in evaluating whether a de facto
taking occurred. Condemnor clearly questioned the sufficiency of proof of a de
facto taking in its Concise Statement of Errors, and abatement is a subsidiary issue.
Further, Condemnor raised the issue of whether Condemnee could abate the
stormwater problem in its cross-examination of Engineer. See N.T. at 85-86; R.R.
at 238a-39a. Because Condemnor raised the abatement issue before the trial court,
and because abatement is a subsidiary issue of proof of de facto taking, it is
properly before this Court.
Nevertheless, as the trial court observed, Condemnor presented no
evidence at trial. Rather, Condemnor relied on its cross-examination of Engineer
to attempt to show that Condemnee could solve the stormwater problem by herself.
Condemnor argues that Engineer “readily conceded” that there is an engineering
solution to the stormwater problem. See Appellant’s Br. at 15.
We disagree. Our review of Engineer’s testimony indicates that
Condemnor, not Condemnee, could have lessened the damage from the stormwater
25
flow by constructing a basin on Condemnee’s property. N.T. at 60-61; R.R. at
213a-14a. This would require a de jure taking of Condemnee’s property because
there is no room for it on the Turnpike side. Id. However, there would still be
damages to Condemnee’s property resulting from the increased amount of runoff
and the concentrated discharge at a specific point. Id.
Further, the trial court found Condemnor’s cross-examination of
Engineer unpersuasive and ineffective in rebutting the evidence of a de facto
taking. Tr. Ct., Slip Op., at 20. For example, Engineer recalled on cross-
examination that when asked if there was an engineering solution to the drainage
problems at issue, he gave no testimony concerning anything about a solution to
Condemnor’s decision to flood Condemnee’s property. N.T. at 86; R.R. at 239a.
Although Engineer indicated that he suspected there could be an engineering
solution to the flooding problem, he never testified what the solution would be,
what it would cost, or who would implement it. Consequently, we reject
Condemnor’s argument that Engineer’s testimony on cross-examination was
sufficient to establish that the stormwater problem was readily abatable.
In addition, Engineer testified that the flooding is continuous and
permanent. N.T. at 42, 56; R.R. at 195a, 209a. The trial court accepted this as
fact. Tr. Ct., Slip Op., at 21. To effectuate a taking, an overflow of water must
constitute an actual, permanent invasion of the land. Colombari v. Port Auth. of
Allegheny Cty., 951 A.2d 409 (Pa. Cmwlth. 2008). Because the trial court found
the stormwater problem to be continuous and permanent, it cannot be considered
abatable to the extent McMaster would control this case. Therefore, we reject
26
Condemnor’s contention that it established through Engineer’s testimony on cross-
examination that there were engineering solutions available as part of the
construction of an access road that could address and abate any stormwater
problems.
IV. Conclusion
For the above reasons, we discern no error or abuse of discretion in
the trial court’s determination that Condemnor de facto condemned, by means of a
permanent stormwater easement, the rear undeveloped portion of Condemnee’s
property as described by the trial court in its order. Accordingly, we affirm.
ROBERT SIMPSON, Judge
27
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dr. Nancy O. Brown :
: No. 235 C.D. 2018
v. :
:
Pennsylvania Turnpike Commission, :
Appellant :
ORDER
AND NOW, this 7th day of January, 2019, for the reasons stated in the
foregoing opinion, the order of the Court of Common Pleas of Montgomery
County is AFFIRMED.
ROBERT SIMPSON, Judge