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11/18/97 CONDEMNATION BY PENN TOWNSHIP YORK COUNTY

November 18, 1997

IN RE: CONDEMNATION BY PENN TOWNSHIP, YORK COUNTY, OF RIGHT-OF-WAY AND EASEMENTS OVER, ACROSS AND THROUGH TRACTS OF LAND LOCATED IN PENN TOWNSHIP, YORK COUNTY, PENNSYLVANIA, WHOSE OWNERS ARE WOODROW B. WILKENS; HORMEL ASSOCIATES; DOUBLEDAY BOOK AND MUSIC CLUB, INC.; HANOVER FOODS, INC., F/K/A HANOVER BRANDS, INC.; L W SPP2, L.P.; WAREHEIM ENTERPRISES, INC., J.F. ROHRBAUGH & CO., INC.; ARWCO CORPORATION; AND THE YORK COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY DOUBLEDAY BOOK AND MUSIC CLUB, INC., APPELLANT; IN RE: CONDEMNATION BY PENN TOWNSHIP, YORK COUNTY, OF RIGHT-OF-WAY AND EASEMENTS OVER, ACROSS AND THROUGH TRACTS OF LAND LOCATED IN PENN TOWNSHIP, YORK COUNTY, PENNSYLVANIA, WHOSE OWNERS ARE WOODROW B. WILKENS; HORMEL ASSOCIATES; DOUBLEDAY BOOK AND MUSIC CLUB, INC.; HANOVER FOODS, INC., F/K/A HANOVER BRANDS, INC.; L W SPP2, L.P.; WAREHEIM ENTERPRISES, INC., J.F. ROHRBAUGH & CO., INC.; ARWCO CORPORATION; AND THE YORK COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY HANOVER FOODS, INC., APPELLANT


Before: Honorable James R. Kelley, Judge, Honorable Jim Flaherty, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Judge Flaherty.

The opinion of the court was delivered by: Flaherty

OPINION BY JUDGE FLAHERTY

FILED: November 18, 1997

Hanover Foods, Inc. (Hanover) and Doubleday Book and Music Club, Inc. (Doubleday), collectively Condemnees, appeal from an order of the Court of Common Pleas of York County (trial court) which dismissed their preliminary objections to the declaration of taking filed by Penn Township (Township). We affirm.

In 1990, six years before the Township filed the declaration of taking at issue, the Township adopted its comprehensive plan. The plan suggested numerous traffic improvement programs, including the improvement of Ridge and Wilson Avenues, which are located in the industrial district. Relative to Ridge Avenue, it was suggested that alignment be improved, shoulders upgraded and a signal installed. As to Wilson Avenue, it was also recommended that the Township improve the road alignment.

In April 1993, the Township commissioners (commissioners) sought to improve five roadways, including Ridge and Wilson Avenues. Eric Bortner (Bortner), the Township's engineer, estimated the design and construction costs for improvements to the five roads. Bortner estimated that the cost would be approximately $2,470,000. The Township thereafter adopted an ordinance approving a general obligation bond in the amount of $2.5 million to cover the cost of improvements to the roadways.

Herbert, Rowland and Grubic (HRG) was the successful bidder for purposes of planning, engineering and designing the five roadways. In making its proposal, HRG conformed to the Penn Township Subdivision and Land Development Ordinance (ordinance). HRG performed various traffic studies for the Ridge and Wilson Avenue projects and submitted several subsequent alignment proposals. During this time, it was determined that the bond proceeds would not cover the cost of improvements to all five roadways. It was then decided to proceed with the improvements to Ridge and Wilson Avenues. The commissioners settled on a single alignment proposal which called for the widening of Ridge and Wilson Avenues from twenty to forty feet, and the installation of curbing and storm water drainage systems.

The commissioners thereafter hired B. Daniel Wagner (Wagner) to appraise the property which would be needed for the improvements. On April 17, 1996, based on the plan prepared by HRG, the Township filed declarations of taking to construct the improvements to Ridge and Wilson Avenues. The declarations of taking acquired parcels of real estate from nine property owners.

Condemnees filed preliminary objections in the trial court alleging that the Township's security was insufficient to fund the proposed taking and that the Township engaged in fraud, bad faith or an abuse of discretion in filing the declaration of taking. The trial court dismissed the preliminary objections and this appeal followed.

The issues in this case are whether the Township has sufficient security to insure payment of just compensation and whether the Township's action in filing the declaration of taking was arbitrary, capricious, unreasonable and in bad faith.

The scope of preliminary objections under Section 406 of the Eminent Domain Code (Code) *fn1 is limited to four matters:

(1) power and right of the condemnor to appropriate the condemned property;

(2) sufficiency of the security;

(3) any other procedure followed by ...


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