IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT
December 17, 2008
EDWARD M. MAZUR; JEFFREY W. BULL; AND AN UNINCORPORATED ASSOCIATION CITIZENS AGAINST TAX INCREMENTAL FINANCING, APPELLANTS
TRINITY AREA SCHOOL DISTRICT; TRINITY SCHOOL BOARD; AND EMILY MINOR; JERRY CHAMBERS; CHARLES MCCREARY; STEPHANIE KOMOROWSKI; KATHY PENKOWSKI; DENNIS MCWREATH, APPELLEES
EDWARD M. MAZUR; JEFFREY W. BULL; AND AN UNINCORPORATED ASSOCIATION CITIZENS AGAINST TAX INCREMENTAL FINANCING, APPELLANTS
WASHINGTON COUNTY; WASHINGTON COUNTY BOARD OF COMMISSIONERS; COMMISSIONER BRACKEN BURNS AND COMMISSIONER LARRY MAGGI, APPELLEES
EDWARD M. MAZUR; JEFFREY W. BULL; AND AN UNINCORPORATED ASSOCIATION CITIZENS AGAINST TAX INCREMENTAL FINANCING, APPELLANTS
SOUTH STRABANE TOWNSHIP; SOUTH STRABANE TOWNSHIP BOARD OF SUPERVISORS; ANTHONY ZELENKA; CHARLES KOSEY AND BILLY BELL, AS SUPERVISORS, APPELLEES
Appeal from the Orders of the Commonwealth Court entered June 25, 2007, at Nos. 824 CD 2006 and 829 CD 2006 affirming the Orders of the Court of Common Pleas of Washington County entered March 28, 2006, at Nos. 2005-: 6319 and 2005-6322. 926 A.2d 1260 (Pa.Cmwlth. 2007) Nos. 3 and 4 WAP 2008. Appeal from the Orders of the Commonwealth Court entered June 25, 2007, at Nos. 825 CD 2006 and 826 CD 2006 affirming the Orders of the Court of Common Pleas of Washington County entered March 28, 2006, at Nos. 2005-: 6320 and 2005-6321. 926 A.2d 1260 (Pa.Cmwlth. 2007) Nos. 5 and 6 WAP 2008. Appeal from the Orders of the Commonwealth Court entered June 25, 2007, at Nos. 827 CD 2006 and 828 CD 2008 affirming the Orders of the Court of Common Pleas of Washington County entered March 28, 2006, at Nos. 2005-v. 926 A.2d 1260 (Pa.Cmwlth. 2007) 7906 and 2005-7907.
The opinion of the court was delivered by: Mr. Justice McCAFFERY
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
ARGUED: September 8, 2008
The issue presented in the instant case is whether courts have subject matter jurisdiction over a challenge to a local authority's determination, pursuant to the Tax Increment Financing Act ("TIF Act"),*fn1 that an area is "blighted." In addition, we are asked to determine whether the instant allegations of bad faith on the part of the local authority are sufficient to withstand preliminary objections in the nature of a demurrer.
Appellants, who are two private individuals (Edward M. Mazur and Jeffrey W. Bull) and a citizens' group (Citizens Against Tax Incremental Financing), have challenged the use of tax increment financing ("TIF") for a commercial development project known as Victory Centre located in South Strabane Township ("the Township").*fn2 TIF is "a technique used by a municipality to finance commercial developments usually involving issuing bonds to finance land acquisition and other up-front costs, and then using the additional property taxes generated from the new development to service the debt." Ondek v. Allegheny County Council, 860 A.2d 644, 645 n.2 (Pa.Cmwlth. 2004) (quoting Black's Law Dictionary (8th ed. 2004)).
Pursuant to the terms of the Victory Centre TIF proposal, the total estimated cost of the project was $400 million, of which 93% was to be privately financed, and the remaining 7% was to be financed via the TIF mechanism, with a payback term of 20 years. The Victory Centre project included retail stores, restaurants, and a hotel on a mostly undeveloped site near the intersection of two interstate highways. Appellees, who are three local taxing entities (the Township, Washington County, and the Trinity Area School District) and the board members, commissioners, or supervisors thereof, each voted to participate in the TIF project. As required by statute, public hearings were held prior to the votes, and the Township determined that the site in question was a "blighted" area. See 53 P.S. §§ 6930.5(a)(5) and 6930.5(a)(6)(iv)(H). Also as required by statute, in October 2005, the Township, as the relevant municipal authority, enacted an ordinance to create the TIF district and to adopt the TIF project plan. See 53 P.S. § 6930.5(a)(6).
Appellants filed six suits against Appellees in the Washington County Court of Common Pleas. In three of the actions, Appellants appealed the decisions of the local taxing entities to adopt the TIF proposal; and in the other three actions, Appellants filed complaints in equity. In all six actions, Appellants sought the same form of relief, i.e., to set aside the taxing entities' decisions to approve and/or to participate in the TIF proposal. The grounds for all the actions were the same. Specifically, Appellants alleged that the decisions of the local governing entities with respect to the TIF plan for Victory Centre were wasteful of taxpayer dollars and that the determination of blight was factually incorrect; in addition, Appellants alleged that Appellees had acted in bad faith with respect to the determination of blight.*fn3
Appellees filed preliminary objections seeking to have all the actions dismissed for lack of subject matter jurisdiction or for failure to state a cause of action. The trial court consolidated all six actions, held that the court did not have subject matter jurisdiction, and accordingly sustained Appellees' preliminary objections; it then dismissed all the complaints.
Appellants appealed to the Commonwealth Court, which affirmed, concluding that, in essence, Appellants were challenging the merits and wisdom of legislative enactments, a matter over which the judiciary does not have jurisdiction. Mazur v. Trinity Area School District, 926 A.2d 1260, 1266-67 (Pa.Cmwlth. 2007) (en banc). More specifically, the Commonwealth Court cited Ondek, supra, for the proposition that a TIF resolution is a purely legislative enactment, not an adjudication, and accordingly the Local Agency Law, which allows aggrieved persons to appeal an agency adjudication, does not provide Appellants with a vehicle upon which to base their appeal.*fn4 Mazur, supra at 1265. In addition, the Commonwealth Court held that it did not have jurisdiction over Appellants' claims for equitable relief, citing the United States Supreme Court for the proposition that "[t]he judiciary may not sit as a super[-]legislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines." Id. at 1266 (quoting City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976)). Concluding that Appellants' conclusory allegations were nothing more than an attack on the wisdom of the taxing districts' legislative enactments, the Commonwealth Court upheld the trial court's dismissal of all complaints based on lack of subject matter jurisdiction. Id. at 1268.*fn5
Appellants then filed a petition for allowance of appeal to this Court, which we granted, limited to the following two issues:
(1) Whether the Court has jurisdiction to review municipal decisions approving a TIF District supported by public funds?
(2) Whether [Appellants'] allegations that [Appellees] made findings of blight in bad faith are sufficient to withstand a demurrer?
Our standard and scope of review concerning questions of subject matter jurisdiction are well-established:
Jurisdiction over the subject matter is conferred solely by the Constitution and laws of the Commonwealth. The test for whether a court has subject matter jurisdiction inquires into the competency of the court to determine controversies of the general class to which the case presented for consideration belongs. Thus, as a pure question of law, the standard of review in determining whether a court has subject matter jurisdiction is de novo and the scope of review is plenary. Whether a court has subject matter jurisdiction over an action is a fundamental issue of law which may be raised at any time in the course of the proceedings, including by a reviewing court sua sponte.
In re Administrative Order No. 1-MD-2003, Appeal of Troutman, 936 A.2d 1, 5 (Pa. 2007).
When an appellate court rules on whether preliminary objections in the nature of a demurrer were properly sustained, the standard of review is de novo and the scope of review is plenary. Luke v. Cataldi, 932 A.2d 45, 49 n.3 (Pa. 2007). The court may sustain preliminary objections only when, based on the facts pleaded, it is clear and free from doubt that the complainant will be unable to prove facts legally sufficient to establish a right to relief. Hospital & Healthsystem Association of Pennsylvania v. Department of Public Welfare, 888 A.2d 601, 607 n.12 (Pa. 2005). For the purpose of evaluating the legal sufficiency of the challenged pleading, the court must accept as true all well-pleaded, material, and relevant facts alleged in the complaint and every inference that is fairly deducible from those facts. Id.; Willet v. Pennsylvania Medical Catastrophe Loss Fund, 702 A.2d 850, 853 (Pa. 1997).
In 1990, in response to concerns about the continued existence of blighted urban areas in the Commonwealth, the General Assembly enacted the TIF Act, which authorized the use of TIF. See 53 P.S. §§ 6930.2(a)(1) and (a)(2)). As the TIF Act states, "[t]he authorization of tax increment financing will provide an alternative method for use by authorities in pursuing redevelopment efforts under the Urban Redevelopment Law*fn6 and other applicable laws." 53 P.S. § 6930.2(a)(3). The TIF Act's expressly stated purpose is "to provide an additional and alternative means to finance public facilities and residential, commercial and industrial development and revitalization, all to the public benefit and good." 53 P.S. § 6930.2(b).
The TIF Act sets forth, inter alia, the following steps that must be followed in order to employ this financing mechanism. The governing body of a municipality must propose the creation of a "tax increment district," which is a contiguous geographic area within a redevelopment area, and the adoption of a "project plan" for development of the district. 53 P.S. §§ 6930.3 and 6930.5. The governing body must hold "at least one public hearing at which interested parties are afforded a reasonable opportunity to express their views on the concept of tax increment financing, on the proposed creation of a tax increment district and its proposed boundaries, on the proposed adoption of a project plan for the district and the benefits to the municipality." 53 P.S. § 6930.5(a)(5). In order to create the tax increment district and adopt the project plan, the governing body must enact a resolution or ordinance to that effect. 53 P.S. § 6930.5(a)(6). The resolution or ordinance must, inter alia, contain findings that the proposed tax increment district is a "blighted" area containing characteristics of blight as described in the Urban Redevelopment Law. 53 P.S. § 6930.5(a)(6)(iv)(H).
The Commonwealth Court has previously addressed challenges to adoption of a TIF resolution or ordinance. In Ondek, supra, the appellants, in their capacity as taxpayers and residents, challenged the adoption of a TIF resolution, enacted by the Allegheny County Council, to authorize the use of TIF for a commercial project known as Mt. Nebo Pointe. The Ondek appellants appealed under the Local Agency Law, which provides, in relevant part, that "[a]ny person aggrieved by an adjudication of a local agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals or pursuant to Title 42." 2 Pa.C.S. § 752 (emphasis added). "Adjudication" is defined in this context as "[a]ny final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made." 2 Pa.C.S. § 101.
The Commonwealth Court held that the TIF resolution authorizing Mt. Nebo Pointe was not an adjudication, but rather was a legislative act intended to spur local development. Ondek, supra at 649. The court further explained its holding as follows:
The land development and financing scheme created by the [Mt. Nebo Pointe] Resolution affects the interests of all of the residents of Allegheny County, particularly those who pay real estate taxes on properties within the TIF district. Indeed, a tax resolution is a prime example of an "agency action" that necessarily affects the interest of the public in general and not just those individual citizens who decide to mount a legal challenge to such a resolution.
Thus, because the TIF resolution was deemed to be a purely legislative enactment and not an adjudication, the Commonwealth Court held that the trial court did not have jurisdiction to hear a challenge to that resolution pursuant to the Local Agency Law, and accordingly ordered the appeal to be dismissed. Id. at 649.
In Mercurio v. Allegheny County Redevelopment Authority, 839 A.2d 1196 (Pa.Cmwlth. 2003) (en banc), the appellants filed a complaint for declaratory judgment and in equity seeking to enjoin another TIF project. Like the instant Appellants, the Mercurio appellants contended, inter alia, that the TIF district at issue was not blighted. Id. at 1198, 1203-04. Noting that there were no allegations of bad faith or fraud on the part of any governmental entity, the Mercurio court concluded that the determination of blight was not subject to judicial review. Id. at 1203-04. The Mercurio court emphasized that the essence of the appellants' suit was their disagreement with the local authority's enactments creating the TIF district, and reiterated that the judiciary did not have jurisdiction to rule on the wisdom of legislative enactments. Id. at 1203.
In the Mercurio decision, the Commonwealth Court relied on this Court's holding in Schenck v. City of Pittsburgh, 70 A.2d 612 (Pa. 1950), an eminent domain case involving the Urban Redevelopment Law. Like the TIF Act, the Urban Redevelopment Law requires that an area to be redeveloped under the statute be declared blighted. 35 P.S. § 1712.1; see In re Condemnation by the Urban Redevelopment Authority of Pittsburgh, 594 A.2d 1375, 1376 (Pa. 1991). The appellant-property owner in Schenck sought an injunction against the City of Pittsburgh with respect to the redevelopment of a tract of land within which the appellant's property was located. This Court refused to grant appellant an injunction, holding that "in the absence of any indication that the [City Planning] Commission did not act in good faith or was wholly arbitrary in certifying the area designated by it as blighted, its certification to that effect is not subject to judicial review." Schenck, supra at 614; see St. Peter's Roman Catholic Parish v. Urban Redevelopment Authority of Pittsburgh, 146 A.2d 724,726 (Pa. 1958) ("[I]t is generally settled that unless bad faith, arbitrary action, or failure to follow a statutory requirement [is] shown, the certification by an Authority that an area is blighted and the plan for improving it are not subject to judicial review."); see also In re Condemnation by the Urban Redevelopment Authority of Pittsburgh, supra at 1378 (Pa. 1991) (expressing the view that "a certification of blight does not, in and of itself, have a legal effect on property rights") (emphasis in original).
We addressed further the role of the judiciary in a challenge to a local authority's determination of blight pursuant to the Urban Redevelopment Law in Crawford v. Redevelopment Authority of the County of Fayette, 211 A.2d 866 (Pa. 1965). In Crawford, the plaintiff-appellee brought an action in equity to enjoin the redevelopment authority from taking her property via eminent domain pursuant to a redevelopment plan. The plaintiff- appellee contended, inter alia, that the redevelopment authority had acted arbitrarily in including her property within the tract of land characterized as blighted and subject to redevelopment. Following a hearing, the trial court found in favor of plaintiff-appellee; held that, contrary to the redevelopment authority's determination, her property was not blighted; and accordingly forbade the taking of her property.
This Court reversed, noting first that the Urban Redevelopment Law gave to the local urban redevelopment authority the power to declare a property blighted and to exercise eminent domain as to the blighted property. Id. at 868; see 35 P.S. §§ 1709(i) and 1712.1(a). We made clear that "the courts have no right to substitute their discretion in place of the legislatively granted discretion of the [local redevelopment] Authority." Crawford, supra at 868. The decision whether to exercise the power is justified in a given instance rests with the redevelopment authority -- not with the courts. However, we further held that judicial review is proper when it is alleged that the redevelopment authority acted in bad faith or arbitrarily, failed to follow a statutory requirement, or violated a constitutional provision. Id.
The power of discretion over what areas are to be considered blighted is solely within the power of the [local] Authority. The only function of the courts in this matter is to see that the Authority has acted not in bad faith; to see that the Authority has not acted arbitrarily; to see that the Authority has followed the statutory procedures in making its determination; and finally, to see that the actions of the Authority do not violate any of our constitutional safeguards.
The holdings in Crawford, Schenck, Ondek, and Mercurio are derived in essence from the constitutional doctrine of separation of powers. As the United States Supreme Court has stated, "[courts] are not equipped to decide desirability [of legislation]; and a court cannot eliminate measures which do not happen to suit its tastes if it seeks to maintain a democratic system. The forum for the correction of ill-considered legislation is a responsive legislature." Daniel v. Family Security Life Insurance Co., 336 U.S. 220, 224 (1949) (quoted in Martin v. Unemployment Compensation Board of Review, 466 A.2d 107, 114 (Pa. 1983)).
Turning to Appellants' first issue in the instant case, we must, as an initial matter, set forth in some detail the precise nature of Appellants' claim. Appellants challenge the Township's finding of blight, which, as discussed above, is a statutorily-required component of the ordinance creating the Victory Centre TIF district and project plan. See 53 P.S. § 6930.5(a)(6)(iv)(H); Appellants' Brief at 11. Appellants contend that the creation of the Victory Centre TIF district and the plan for development "do not comply with the letter or spirit of the TIF Act" because "the conditions surrounding the property of the Victory Centre TIF project is [sic] not 'blight.'" Appellants' Brief at 13. Appellants assert that they are challenging not the wisdom of the Victory Centre TIF project, but rather the legality of its statutory authorization because the determination of blight was erroneous. Id. at 13-14, 20. Appellants insist that the court was required to accept as true the allegation in their complaints that the property was not blighted. Id. (citing Willet, supra at 853). In Appellants' view, "whether or not the property is blighted is a question that can only be evaluated by a court after a hearing on the merits." Id. at 27.
Turning first to the challenge brought under the Local Agency Law, we agree with the Commonwealth Court that a TIF resolution or ordinance, which includes the determination of blight, is a purely legislative enactment that is intended to spur local development; it is not an adjudication. Mazur, supra at 1265 (relying on reasoning in Ondek, supra). The Local Agency Law is not relevant to legislative enactments, but rather grants to an aggrieved person the right to appeal an agency adjudication, which is defined in relevant part as a final agency decision that affects personal or property rights. Ondek, supra (citing 2 Pa.C.S. § 101). In In re Condemnation by the Urban Redevelopment Authority of Pittsburgh, supra at 1378, an eminent domain case involving the Urban Redevelopment Law, this Court stated that "a certification of blight does not, in and of itself, have a legal effect on property rights." (emphasis in original). Therefore, we agree with the Commonwealth Court that a determination of blight under the TIF Act does not constitute an adjudication, but rather is a statutorily-required component of a legislative enactment under the TIF Act. Appellants have failed to advance any specific argument as to why the Local Agency Law should apply to their challenge to the determination of blight.*fn8
Accordingly, we hold that the Local Agency Law does not provide a vehicle for Appellants' challenge.
Turning next to Appellants' equity challenge to the Township's determination of blight and creation of a TIF district, we must note that Appellants raise a matter similar to that raised by the appellant in Crawford. Although in Crawford the challenge was brought under the Urban Redevelopment Law and in the instant case the challenge was brought under the TIF Act, we conclude that this distinction does not mandate a different resolution.*fn9 As we made clear in Crawford, although a court may not substitute its judgment for that of the proper local authority with regard to a determination of blight, it is entirely proper for the court to review a claim regarding whether the authority has acted arbitrarily, in bad faith, contrary to statutory procedures, or in violation of any constitutional safeguards. Crawford, supra at 868. In Crawford we implicitly determined that such a claim presented a justiciable issue over which the trial court sitting in equity had jurisdiction.*fn10 We can see no reason why the Crawford holding should not control the resolution of the instant case. We conclude, therefore, that a court of common pleas does have jurisdiction in equity to review a challenge to a municipal ordinance declaring an area blighted and creating a TIF district, but that the matter is justiciable only if the court determines that the local authority acted arbitrarily, in bad faith, contrary to statutory procedures, or in violation of constitutional safeguards.
We turn now to Appellants' second issue, in which they contend that their allegations of the Township's bad faith in finding blight are sufficient to withstand Appellees' preliminary objections in the nature of a demurrer. It is well-established that bald assertions of bad faith are not sufficient to overcome preliminary objections in the nature of a demurrer. Rather, to be legally sufficient, the pleadings must include clear averments of fact to support the assertion of bad faith. See In re Condemnation by the Redevelopment Authority of the City of Lancaster, 682 A.2d 1369, 1372 (Pa.Cmwlth. 1996).
Appellants expressly state in their brief that their allegation of bad faith was set forth in the following paragraph of their complaint:
a. The property at issue must be considered "blight" under the law in order to be eligible for TIF treatment (TIF Act at § 6930.5(a)(6)(IV)(H)). The municipal body, South Strabane Township[,] responsible for making a determination of blight, had already voted, consistent with the recommendations of a hired township planner[,] that the township's comprehensive plan be amended to identify the area as a "prime location for regional shopping and entertainment". In fact[,] the property is located near the intersection of two interstate highways, adjacent to the Meadows racetrack, anticipated to receive gambling licensing, and concomitant traffic and income, as well located [sic] in one of [the] nation's highest concentrations of hunting and fishing licensees. In light of South Strabane Township's vote on August 23, 2005[,] by a 5-0 margin to rezone the property at issue to a commercial designation, with the specific conditions suggested by township planner Roberta Sarraf and specifically including identifying the area as a prime location for regional shopping and entertainment, said property cannot reasonably be designated "blighted", a precondition to TIF approval, absent bad faith.
Appellants' Brief at 29 (emphasis in original) (quoting Complaint at 6-7).
These factual allegations, which the court accepts as true for purposes of ruling on a demurrer, do not even come close to establishing bad faith. It is not necessarily inconsistent for a tract of land to be characterized both as blighted and as a prime location for regional shopping and entertainment.
The TIF Act contains the following statement of findings concerning blight, which mimics the findings in the Urban Redevelopment Law:
The General Assembly previously found in the enactment of . the Urban Redevelopment Law, that, among other things, there exist in urban communities in this Commonwealth areas which have become blighted because of:
(i) the unsafe, unsanitary, inadequate or over-crowded condition of the dwellings in the area;
(ii) inadequate planning of the area, or excessive land coverage by the buildings thereon;
(iii) the lack of proper light and air and open space;
(iv) the defective design and arrangement of the buildings;
(v) faulty street or lot layout; or
(vi) economically or socially undesirable land uses.
53 P.S. § 6930.2(a)(1); see also 35 P.S. § 1702(a) (same factors in Urban Redevelopment Law).
In addition, the TIF Act expressly states that the applicable characteristics of blight are described in the Urban Redevelopment Law. See 53 P.S. § 6930.5(a)(6)(iv)(H). The relevant sections of the Urban Redevelopment Law provide that blighted property shall include premises that are a public nuisance or an attractive nuisance to children; any dwelling designated as unfit for human habitation; any structure that is a fire hazard or is otherwise dangerous; any structure lacking functional facilities so that it is unfit for its intended purpose; a vacant or unimproved tract in a predominantly built-up neighborhood which is a haven for vermin or trash; or certain unoccupied, vacant, or abandoned properties. 35 P.S. § 1712.1(c).
The above statutory provisions indicate that a tract of land may be considered a prime location for shopping and entertainment, and simultaneously exhibit one or more of the characteristics of a blighted property. Thus, the mere fact that the property in question here was designated as a prime location for shopping and entertainment cannot on its own establish that the Township exhibited bad faith when it also characterized the property as blighted. Because Appellants have not met their burden to plead facts sufficient to establish bad faith, their second issue must fail.*fn11
In sum, we hold that: 1) a court of common pleas does not have jurisdiction under the Local Agency Law to review a challenge to a municipal authority's designation of blight under the TIF Act; 2) a court of common pleas does have jurisdiction in equity to review such a claim; and 3) a complaint containing such a claim states a justiciable cause of action only when it contains well-pled allegations that the municipal authority acted arbitrarily, in bad faith, contrary to statutory procedures, or in violation of any constitutional safeguards. We further hold that Appellants in the instant case have not met their burden to plead clear averments of fact to support their allegations of bad faith.
Mr. Chief Justice Castille, Messrs. Justice Saylor, Eakin and Baer, and Mesdames Justice Todd and Greenspan join the opinion.