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In re Condemnation by the Beaver Falls Municipal Authority for Penndale Water Line Extension

November 21, 2008

IN RE: CONDEMNATION BY THE BEAVER FALLS MUNICIPAL AUTHORITY FOR PENNDALE WATER LINE EXTENSION, BIG BEAVER BOROUGH, BEAVER COUNTY,
CONSTANTINE JOHN VASSILAROS AND SHERRY VASSILAROS
v.
BEAVER FALLS MUNICIPAL AUTHORITY, APPELLANT



The opinion of the court was delivered by: Judge Simpson

Argued: October 16, 2008

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

In this eminent domain appeal, Beaver Falls Municipal Authority (Authority) asks whether the Court of Common Pleas of Beaver County (trial court) erred in sustaining the preliminary objections of Constantine John Vassilaros and Sherry Vassilaros (Condemnees) to the Authority's declaration of taking. Condemnees initially granted the Authority an easement over their property for an access road and water lines in connection with the Authority's construction of a water tank on property adjacent to Condemnees' property. Pursuant to the easement agreement, the Authority agreed to place excess soil from excavation of the access road at a location on Condemnees' property as directed by Condemnees. However, the Authority later condemned five acres of Condemnees' property in fee simple to avoid the expense of performing its obligation of moving the soil. The trial court determined the taking was invalid because it exceeded the reasonable needs of the Authority's project with regard to both the quantity of land and the quantity of the estate taken. Discerning no error in the trial court's decision, we affirm.

The trial court made the following findings. The Authority is a municipal authority duly organized and existing under the laws of the Commonwealth with its principal office located in the City of Beaver Falls, Beaver County. The Authority has the power of eminent domain, but not the power of taxation. Condemnees reside in Wampum Borough, Beaver County. They are fee simple owners of 64 acres in Big Beaver Borough (subject property). The subject property is adjoined along its western boundary by property owned by the company Speed4U, L.P., which fronts on Penndale Road.

In 2005, the Authority decided to construct a water tank and ancillary facilities on a portion of the property owned by Speed4U. The project required construction of an access road and water lines from Penndale Road to the water tank. In mid-2005, John Lightner, a representative of Michael Baker, Jr., Inc., the engineering firm representing the Authority, contacted Condemnees to discuss the possibility of using a portion of the subject property for the access road. A few weeks later, Lightner again contacted Condemnees with an aerial photograph to show the proposed location of the water tank, the water lines and the access road. The proposed water line and access road crosses the northwest corner of the subject property in a generally east-west direction and exits onto the property of Speed4U in a southerly direction, then in a westerly direction, to the proposed location of the water tank.

In June 2005, a subdivision plan for the property owned by Speed4U was prepared. This plan created "Lot No. 1" for the location of the water tank and an easement, 30 feet in width, running from Lot No. 1 in an easterly direction to the western property line of the subject property then in a southerly direction through the remaining property of Speed4U to Penndale Road. The subdivision plan was recorded on July 14, 2006.

On July 6, 2006, Condemnees executed and delivered a water line easement agreement to the Authority. The easement agreement was recorded on July 11, 2006.

In the easement agreement, Condemnees conveyed an easement for a water line and access road across the subject property. The location of the access road and water line is described in the second "Whereas" clause of the agreement in the following manner: "The specific placement of the access road and the location of the right-of-way for the water line relative to said access road are more particularly described in the scaled drawing prepared by the [Authority's] engineer, dated August 2005, receipt for which [Condemnees] acknowledge having been sent to them on or about August 12, 2005." Supplemental Reproduced Record (S.R.R.) at 170b. The granting clause of the easement agreement described the location of the access road and the water line as follows: "[Condemnees] hereby grant, sell and convey to the [Authority], its successors and assigns, an easement and right-of-way more particularly bounded and described in the attached survey performed by the [Authority's] surveyors and engineers." S.R.R. at 171b. Condemnees received the general drawing referred to in the "Whereas" clause on August 12, 2005. The survey referred to in the granting clause was not attached to the recorded water line easement agreement.

The stated consideration for the grant of the easement to the Authority included: (1) the Authority would provide water service to Condemnees and a tap to connect to the water line at no fee; (2) the Authority would specifically delimit the area where the access road and water line easement would be placed; (3) Condemnees would have the right to remove all salable timber from the area of the water line easement and access road; and, (4) the Authority would stockpile any excess excavation from construction of the access road on the subject property at Condemnees' direction.

The easement agreement contained the following clause immediately following the granting clause: "The [Authority], for itself and its agents and assigns agrees to abide by the specific terms herein insofar as not locating the road access [sic] or the water line easement on any property of [Condemnees] other than those specifically shown herein and to abide by any and all other provisions mentioned in the previous paragraphs including the stockpiling and including the right of [Condemnees] to take timber." S.R.R. at 171b. The Authority further agreed Condemnees could seek additional compensation from the Authority.

On August 1, 2006, the Authority began construction of the access road when it entered the subject property. The Authority constructed the access road entirely on the subject property from a point intersecting the northerly line of Penndale Road, running in a northerly direction for a distance exceeding 800 feet.

Significantly, the Authority stockpiled excess soil from the construction of the access road at a location on the subject property to which Condemnees did not agree. The soil remains in that location. The stockpile contains 10,900 cubic yards of earth, is 25 to 30 feet in height and exceeds 30 feet in width.

After construction of the access road and water line began, a dispute arose between the parties as to whether the location of the access road and water line complied with the terms of the water line easement agreement.

The Authority filed its declaration of taking on April 10, 2007, condemning a portion of the subject property consisting of five acres in fee simple. The Authority subsequently amended the declaration of taking twice on April 20 and June 18, 2007. The Authority filed the declarations of taking because it wanted to avoid the cost of moving the stockpile of soil from its present location to a location directed by Condemnees.

Condemnees filed preliminary objections. After hearing, the trial court sustained the preliminary objections, finding the amount of land taken by the Authority far exceeded the amount of land reasonably required for the project's purpose, and the estate in land taken by the Authority far exceeded the estate reasonably required for the project's purpose. Thus, the trial court set aside the taking.

The Authority subsequently filed a motion for reconsideration, which the trial court denied in a second opinion. This appeal by the Authority followed.

On appeal, the Authority argues the trial court erred in: failing to afford proper deference to the Authority's exercise of its eminent domain power; rejecting as pretextutal the Authority's claim of "other considerations" to justify the taking; and, ignoring credible evidence from ...


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