December 8, 2020 Legal Intelligencer / Law Weekly article by Lamb McErlane PC attorneys James ‘Jim’ Sargent, Jr., & Katherine E. LaDow.
Preliminary Objections: Challenging the Declaration of Taking. The condemnee has a limited ability to challenge the governmental taking of his or her property. Pennsylvania’s Eminent Domain Code (the “Code”), gives the condemnee the right to oppose a condemner’s declaration by filing with the court of common pleas a legal document called “preliminary objections.” Preliminary objections must be filed within 30 days after the date when the condemnee was served with notice of the condemnation. See generally, 26 Pa.C.S.A, § 306.
The grounds for challenging a condemnation are limited to the following:
26 Pa.C.S.A. § 306(a)(3).
Whether these issues apply depends upon the facts of the individual case and the nature of the governmental power involved. The Code applies to all condemnations, and the form declaration of taking must be used by all condemning authorities. However, the procedures and effects may differ. For example, a political subdivision with the power to tax need not file a bond, whereas a municipal authority and public utility must file a bond to secure the condemnee’s damages from the take. To exercise the power to condemn, a public utility must have a certificate of convenience from the Public Utility Commission (“PUC”). 66 Pa.C.S. § 1104.
The first ground is unlikely to be viable where the declaration of taking is filed by a governmental or quasi-governmental entity––whether the Commonwealth or a department thereof, a city, borough, municipality, or duly constituted public authority. Many state statutes imbue governmental entities with the power to condemn private property for “public use” or to effectuate the “public interest.” Similarly, the second ground for challenging condemnation often is inapplicable––either because political subdivisions with the power of taxation are not required to post security, or because an entity without the power of taxation has posted acceptable security––but always carefully check. The third ground for challenge is unlikely to be successful because the form of the declaration of taking is dictated by the Code, and is relatively straightforward.
The fourth ground may be the most fruitful avenue for challenge. While the prerequisites for an exercise of governmental power normally are dutifully followed, nonetheless, political subdivisions are known to make errors in Sunshine Act advertising and other procedures. Moreover, § 302(e) of the Code requires the declaration of taking to be filed within one year of the action authorizing the take, and this has been found to nullify a declaration, as has the failure to give proper notice to the condemnee. See, e.g., In re Condemnation by Redevelopment Auth. of Allentown, 31 A.3d 321 (Pa. Cmwlth. 2011).[1]
The Code contemplates speedy resolution of preliminary objections. 26 Pa.C.S.A. § 306(f)(1) (“The court shall determine promptly all preliminary objections….”). There is no hard-and-fast rule dictating how quickly a court must decide preliminary objections, and the practical reality may be anything but “prompt.”
If the condemnee’s preliminary objections raise material issues of fact, generally the court issues an order directing discovery, which can include interrogatories, requests for production of documents and depositions of employees of the condemning authority or other fact witnesses. The court may hold an evidentiary hearing or resolve issues of fact after briefing based on depositions and other discovery. This process should only take months, but it can take years, particularly if either side appeals.
The Commonwealth of Pennsylvania and its various Departments have the power to condemn (for example, the Department of Transportation, 71 P.S. § 511, et seq., and the Pennsylvania Turnpike Commission, 36 P.S. § 652.1, et seq.); local or regional authorities have the power to condemn (for example, the Delaware River Basin Commission, and the Philadelphia Regional Port Authority); local political subdivisions may exercise the power to condemn (for example, cities, boroughs, townships and school districts); publicly constituted municipal authorities have the power (for example, solid waste and sewer authorities, and redevelopment authorities); and even private entities that serve vital public interests with the status of public utilities have the authority to condemn (for example, utility companies and gas pipelines, 66 Pa.C.S. § 101, et seq.).
In general, the courts are disinclined to substitute their judgments for public officials who have made the decision to condemn private property for public use. See, e.g., In re Condemnation of Real Estate by the Borough of Ashland, 851 A.2d 992 (Pa. Cmwlth. 2004) (court’s review is limited by the separation of powers and it will only disturb municipal official’s decision where there is evidence of fraud, collusion, bad faith or abuse of discretion).
As for the validity of the condemnor’s declaration and procedures, generally a challenge on these grounds is unlikely to be successful. The requirements for the content of the notice of condemnation and service are clearly set forth in § 305 of the Code. Most governmental entities are well versed in the forms and procedures; as a result, it may be unlikely to find error in the decision to condemn private property, the manner in which that decision was made, or in the form of the notice or declaration or the manner of service––most likely all necessary statutory requirements will have been satisfied, but it is always worth examining the process and procedures. If the condemnee files preliminary objections that take issue with the form of the declaration itself, it may be possible to quickly remedy errors, and, if asked, the court may find them harmless. See, e.g., In re Condemnation of Certain Properties and Prop. Interests for Use as Pub. Golf Course, 822 A.2d 846 (Pa. Cmwlth 2003).
Condemnees frequently have objected on the theory that condemnations will result in private benefit to developers or other private interests. As a general rule, however, a taking does not lose its public character merely because some private benefit may be conferred. See, e.g., Appeal of Heim, 617 A.2d 74 (Pa. Cmwlth. 1992) (township taking of land for access road to development). Redevelopment authorities frequently are challenged, but the courts have held it does not matter that private interests ultimately benefit, so long as the take has a proper public purpose. In Kelo v. City of New London, 545 U.S. 469 (2005), a majority of the U.S. Supreme Court ruled that a city redevelopment authority’s condemnation of private property for construction of a commercial district to compliment a pharmaceutical company’s research and development facility was a classic example of the traditional governmental function of promoting economic development, notwithstanding that it resulted in private benefit.
As a general rule, political subdivisions cannot take land in another political subdivision, absent approval of that subdivision. 26 Pa.C.S.A. § 206(a). Exceptions in § 206(b) of the Code include school districts and some municipal authorities—for example, authorities that handle public water, sewage and solid waste—whose geographic boundaries overlap municipal boundaries, hence may condemn land outside the political subdivision where they were organized. For example, the Chester County Solid Waste Authority operates a landfill that straddles the border between Chester and Lancaster Counties, yet still has the power to condemn property in Lancaster County, and is deemed to be an extension of the County itself for venue purposes. See Guthan v. City of Philadelphia, 249 A.2d 557 (Pa. 1969) (Philadelphia Airport Authority operates Philadelphia International Airport on land that straddles Philadelphia and Delaware Counties).[2] Sewer and water authorities frequently operate facilities in multiple municipalities.
If the court sustains the condemnee’s preliminary objections, title to the property condemned re-vests in the condemnee and both parties will return to the status quo existing before the condemnation was filed. In such circumstances “the condemnor shall reimburse the condemnee for reasonable appraisal, attorney and engineering fees and other costs and expenses actually incurred because of the condemnation proceedings.” The trial court may scrutinize any such claim for reasonableness. Twp. of Millcreek v. Angela Cres Tr. of June 25, 1998, 142 A.3d 948 (Pa. Cmwlth. 2016).
Preliminary objections in condemnation are unique both because they provide the only avenue to challenge the legal authority for the take, and because they may require resolution of predicate factual issues––relating to procedures, timing, notice to and service. Although intended to be resolved “promptly,” preliminary objections can result in lengthy delay.
To be continued in the next article of this four part series, Eminent Domain in Pennsylvania–– Part IV Who Can Condemn.
Read Part I & Part II of the article series:
James (Jim) C. Sargent is a Partner and Co-Chairman of Lamb McErlane’s Appellate Advocacy Group and Litigation Department. Jim represents small businesses, as well as major national and multinational manufacturers in litigation and appeals. His practice includes commercial contracts, real estate and banking law, construction litigation, municipal law, restrictive covenants, employment contracts, as well as condemnation matters. Jim also offers mediation services in commercial/construction/business ownership disputes. jsargent@lambmcerlane.com. 610-701-4417. www.lambmcerlane.com
Katherine (Katie) LaDow is an Associate in the litigation department at Lamb McErlane PC. She concentrates her practice in the areas of state and federal civil litigation, municipal litigation, government liability & civil rights defense, personal injury, workers compensation and landlord / tenant work, as well as condemnation matters. She represents individuals, small and large businesses and municipalities in a wide array of civil, employment and tort-based disputes. kladow@lambmcerlane.com. 610-701-3261.
* Ranjani Sarode, a summer intern at Lamb McErlane PC also assisted with this article. Ranjani is attending Temple Law School, she is currently pursuing Land Use/Zoning, Real Estate, and Environmental Law as her preferred practice areas.
[1] City of Allentown held that § 205(e)––providing that the declaration of a blighted area expires after 20 years––did not supersede § 302(e).
[2] Under Pa.R.C.P. § 2103(b), “an action against a political subdivision may be brought in and only in the county (not the counties) in which the political subdivision is located.” The declaration of taking, however, must be filed in the county in which the condemned land is located. One might argue that preliminary objections and valuation proceedings within the taking are “actions against a political subdivision.” We are not aware of any decision as whether Rule 2103(b) applies.
