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10/10/97 MATTER PROCEEDING BY TOWNSHIP EAST HANOVER

COMMONWEALTH COURT OF PENNSYLVANIA


October 10, 1997

IN THE MATTER OF THE PROCEEDING BY THE TOWNSHIP OF EAST HANOVER FOR THE CONDEMNATION OF CERTAIN PROPERTY OF CHESAPEAKE ESTATES PARTNERSHIP; CHESAPEAKE ESTATES PARTNERSHIP, APPELLANT

Appealed From No. 957 S 1997. Common Pleas Court of the County of Dauphin. Judge HOOVER.

Before: Honorable Doris A. Smith, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Friedman. Judge Smith concurs in the result only.

The opinion of the court was delivered by: Friedman

OPINION BY JUDGE FRIEDMAN

FILED: October 10, 1997

Chesapeake Estates Partnership (Chesapeake) appeals from an order of the Court of Common Pleas of Dauphin County that dismissed Chesapeake's Preliminary Objections to East Hanover Township's (Township) Declaration of Taking condemning certain property owned by Chesapeake. We affirm.

On February 26, 1997, the Township filed a Declaration of Taking condemning a portion of property owned by Chesapeake *fn1 located in East Hanover Township, Dauphin County, Pennsylvania. (R.R. at 5a.) The Township stated that a temporary construction easement and a permanent right-of-way were being taken for the purpose of constructing and maintaining a public sanitary sewer system. (R.R. at 6a.) The Township offered Chesapeake $1,973.00 as just compensation for the easement and right-of-way. (R.R. at 6a.) The condemnation was authorized by a Resolution of the Board of Supervisors of the Township duly adopted on February 18, 1997. *fn2 (R.R. at 5a.) The Township filed and served a Notice of the Filing of the Declaration of Taking upon Chesapeake on February 26, 1997. (R.R. at 12a.)

Chesapeake filed timely Preliminary Objections to the Township's February 26, 1997 Declaration of Taking, *fn3 challenging the condemnation on the basis that, inter alia, the Township did not have the power or right to condemn Chesapeake's property; and that the condemnation was arbitrary, capricious, unreasonable and in bad faith because Chesapeake's property did not need to be included within the proposed public sanitary sewer system. (R.R. at 27a.)

A hearing was held on April 25, 1997. Clarence W. Martin, a partner in Chesapeake, testified at the hearing on behalf of Chesapeake. Carl Poffenberger, head of the Municipal and Environmental Division of Erdman Anthony Associates, the engineering firm handling the development of the Township's sewer system, testified on behalf of the Township. Both Martin and Poffenberger testified that the Township was required, by direction of the Pennsylvania Department of Environmental Protection (DEP), to include Chesapeake in the service area of the Township's public sanitary sewage system (the Act 537 Plan), despite the fact that Chesapeake had its own private facility. (R.R. at 163a, 173a, 181a.) DEP had approved the Act 537 Plan conditioned upon inclusion of Chesapeake's property. (R.R. at 164a.)

According to Martin, Chesapeake has operated its private sanitary sewer system on a continual basis since 1987 when it was initially issued an operating permit by the Department of Environmental Resources (DER) (now DEP). *fn4 (R.R. at 157a.) On February 26, 1992, DEP issued a renewal permit to Chesapeake; however, the renewal contained the condition that once a public sewer system was available, the permit would no longer be valid and Chesapeake would have to hook on to the public sewage system. (R.R. at 174a.) Martin further testified that the new permit which Chesapeake had recently applied to DEP for would also contain the condition requiring Chesapeake to hook on to the Township's sewer system upon its construction. *fn5 (R.R. at 174a.)

Martin provided further testimony that Chesapeake would not contest the Township's right to build a sewer system or to obtain the right-of-way going across Chesapeake's property if Chesapeake does not have to hook on to the system. (R.R. at 176a-77a.) Rather, Chesapeake's principal reason for contesting the Township's condemnation of its property is the costs Chesapeake will incur in hooking onto the Township's sewer system, including losing the value of its present sanitary sewage system at the mobile home park. (R.R. at 178a.)

Poffenberger testified that it was necessary to condemn Chesapeake's property to get the point of connection to Chesapeake's existing sewer treatment system and to facilitate the addition of properties adjacent to the mobile home park, including a gas station, small park, and Penn National Race Track. *fn6 (R.R. at 181a, 187a.)

Following the hearing, the trial court concluded that Chesapeake failed to sustain its burden of proving that the proposed condemnation was not within the power or right of the Township or suffered from some other deficiency as enumerated in Section 1-406(a) of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-406(a), and issued an order dismissing the Preliminary Objections. Chesapeake appeals from the trial court's dismissal of the Preliminary Objections. *fn7

The threshold issue of this case is whether the Township possessed the authority to condemn the Chesapeake property for the purpose of constructing and maintaining a public sanitary sewer system; for without that authority, no condemnation can take place. In re Condemnation by the Township of Heidelberg for Footpath, Alleyway and Bridge Purposes, 58 Pa. Commw. 321, 428 A.2d 282 (Pa. Commw. 1981). We conclude that, pursuant to the grant of eminent domain power to second class townships under section 2501 of the Second Class Township Code, *fn8 the Township possessed the authority to condemn Chesapeake's property for the purpose of constructing and maintaining a public sanitary sewer system. In connection with such condemnation, the Township properly offered Chesapeake the sum of $1,973.00 as just compensation. *fn9

The next issue raises the question of whether, because the Township possessed the power to condemn, its condemnation here was arbitrary, capricious or an abuse of discretion. Courts cannot interfere with the exercise of the power of eminent domain by an entity possessing such power, in the absence of proof of fraud, collusion, bad faith or arbitrary action equating an abuse of discretion. In re Heidelberg, 428 A.2d at 286, citing Weber v. Philadelphia, 437 Pa. 179, 262 A.2d 297 (1970). Because there is a strong presumption that the municipality has acted properly, the burden is heavy upon one attempting to show bad faith or an abuse of discretion. Id.

Chesapeake argues that the trial court failed to acknowledge the restrictions of the Eminent Domain Code, asserting that no public purpose exists for the condemnation of its property for a sewage system. Chesapeake asserts that, because Chesapeake has its own private facility which can continue to serve the mobile home park, in addition to the gas station and other adjacent facilities that the Township intends to include in its system, the taking by the Township is arbitrary, capricious and an abuse of discretion. We conclude that the trial court properly determined that the condemnation was not arbitrary, capricious or an abuse of discretion.

This court has held that the establishment and construction of a system of sewers and drainage under the Second Class Township Code is a proper public purpose for condemning private property. Harford Township v. Bandurick, 660 A.2d 189 (Pa. Commw. 1995). *fn10 Under the grant of power to second class townships, and pursuant to its police powers, the Township has authority to construct a sewage facility as it deems necessary and appropriate. Id.

Finally, Chesapeake contends that section 2502(d) of the Second Class Township Code prevents the Township from including Chesapeake within its public sewer system. *fn11 This argument also must fail. The section 2502(d) exemption applies only when an entity is operating a private sewage treatment plant under mandate of a state agency, and lasts as long as the private plant continues to meet the specifications and standards mandated by that agency. Here, there is no dispute between the parties that once the Township's public sanitary sewer system is built, Chesapeake's operating permit becomes void and must be relinquished to DEP. At that point, Chesapeake's private sewer system will no longer be mandated by DEP. Without such mandate, the Township may require Chesapeake's inclusion within the public sewer system. *fn12 Accordingly, we affirm the trial court's dismissal of Chesapeake's Preliminary Objections.

ROCHELLE S. FRIEDMAN, JUDGE

Judge Smith concurs in the result only.

ORDER

AND NOW, this 10th day of October, 1997, the order of the Court of Common Pleas of Dauphin County, dated May 20, 1997, is affirmed.

ROCHELLE S. FRIEDMAN, JUDGE


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