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In Re: Condemnation By the Borough v. Borough of Blakely

July 18, 2011


The opinion of the court was delivered by: Robert Simpson, Judge

Argued: June 6, 2011



In this eminent domain case, John R. Williams (Owner) appeals from an order of the Court of Common Pleas of Lackawanna County (trial court)*fn1 that sustained Blakely Borough's (Borough) preliminary objections to Owner's petition for appointment of a board of viewers (petition for viewers) alleging the Borough effectuated a de facto taking of a portion of his property by installing a PVC drainage pipe that cuts off vehicular access to an adjacent road. Owner contends that the trial court erred in dismissing his petition as premature pursuant to Borough of Centralia v. Commonwealth, 658 A.2d 840 (Pa. Cmwlth. 1995) and that he alleged sufficient facts to establish a de facto taking under the 1964 Eminent Domain Code (1964 Code).*fn2 For the reasons that follow, we affirm.

I. Background

A. Factual History

The record in the present case consists of deposition testimony and documentary evidence. Owner testified on his own behalf. John J. Castellani (Surveyor), a surveyor and adviser for the Borough since the early 1970s, testified for the Borough. The parties also jointly submitted a copy of Owner's deed to a former railroad bed (railroad bed or subject property), and two survey maps of the subject property. See Joint Exs. 1, 2, 6. Owner also submitted three photographs of the subject property. See Pl.'s Exs. 3, 4, 5.

In 1966, Owner purchased property fronting on Everson Street and abutting the railroad bed and Virginia Avenue. In 1986, Owner purchased the subject property. There are no written easements over the subject property.

After his purchase of the subject property, Owner's property was originally bounded by streets on two sides. However, after his purchase of the railroad bed, Owner's property is now bounded by Gino Merli Drive to the north, Everson Street to the east, and Virginia Avenue to the west. There are two neighboring properties to the south. Since his 1966 purchase of the larger parcel fronting on Everson Street, it has been Owner's intention to build homes and townhomes on both Everson Street and Virginia Avenue. In 2001 or 2002, Owner constructed an apartment building on Everson Street.

Surveyor does a lot of work on the Borough's water problems, sanitary problems, sewer lines and roadways. He surveyed the subject property in the early 1970s and is familiar with the changes to it. The Everson Street side of Owner's property is higher than the subject property. More specifically, there is about a 100-foot drop from Everson Street to the subject property.

At the time Owner purchased the abutting property in 1966, the subject property was still in use by the railroad. The railroad tracks and ties were removed in the late 1960s or early 1970s. Fine coal was then surface mined from the bed to a depth of 8-10 feet. As a result of the removal of the tracks and surface mining, the subject property flattened out into a ravine. This led to substantial flooding problems. Storm water collected in the ravine and flooded lower lying properties.

Over time, a ditch formed along the subject property. Surveyor testified the Borough maintained the ditch, which is adjacent to Virginia Avenue, since the 1970s. It periodically cleaned out or re-dug the ditch, which became a means for controlling storm water runoff.

In the early 1980s, the Borough placed a plastic drainage pipe in the ditch and covered it with dirt. The Borough also continued to clean out and maintain the ditch. As a result of flooding and other problems, the pipe needed to be replaced on several occasions. In the late 1980s or early 1990s, the Borough received federal grant money for storm water cleanup, and it replaced the pipe. The Borough also put in a retention basin at this time. In the mid-1990s, the Borough replaced the pipe a second time.

Owner testified that in the early to mid-1990s, the Borough entered the subject property without permission to place the new underground pipe in the railroad bed/ditch. The new pipe was approximately 1200 feet in length and at this time extended over the entire length of the subject property. The Borough covered the plastic pipe with 12 feet of fill. However, it could not support vehicular traffic. To support vehicular traffic, the pipe would need to be replaced by a reinforced concrete pipe.

Also in the mid-1990s, Owner purchased over 20 truckloads of fill and deposited it along Virginia Avenue with the purpose of placing it in the ditch on the subject property to gain access to Virginia Avenue. The Borough, however, confiscated the fill and put it in the drainage ditch on adjacent properties. Owner also recalled that Harry McCusker (Borough Manager) told him the Borough owned the ditch and Owner could not fill it in.

Further, in 2006-2007, the Borough began constructing a 180-foot fence on the Property with "No Trespassing" and "No Dumping" signs facing toward Owner. Surveyor agreed the fence served no valid purpose. After a month, the Borough removed the fence posts.

Also, in 2005-2006, Owner made a presentation to Borough Council about developing residential lots on Virginia Avenue. Owner became aware he would need a dimensional variance for three lots. Owner recalled he told the Borough, "I don't want you to compensate me for the pipe that's there, but in compensation I would like you to put in the three uprights to come up to the height of the land between Everson and Virginia, and backfill that in, and give me the variance for these other three lots ...." Notes of Testimony (N.T.), 02/25/09, at 54.

B. Procedural History

1. Pleadings

In May 2008, Owner filed a petition for viewers alleging a de facto taking. He alleged the Borough, in constructing storm water drainage facilities adjacent to Virginia Avenue, effectuated a de facto taking of the subject property.

Owner alleged as follows. In the summer of 1989, the Borough installed a drainage pipe on the subject property that cut off access to Virginia Avenue, which resulted in a diminution in the value and use of the property. Pet. for Viewers at ¶11(a). The Borough also refused to fill in the open ditch containing the pipe, which cut off access to the property by way of Virginia Avenue. Id. at ¶11(b). In the mid-1990s, the Borough again entered the subject property, removed stockpiled fill, and deposited it in the ditch on adjacent properties. Id. at ¶11(d). Also, in or about 2006, the Borough began installing a metal fence adjacent to the ditch and placed "No Dumping" signs on it facing the subject property. Id. at ¶11(e). These actions effectuated a de facto taking of the subject property.

In response, the Borough filed preliminary objections specifically denying Owner's allegations. See Prelim. Objections at ¶7. The Borough countered that no taking occurred because it has an easement for the drainage ditch. Id. The Borough further alleged Owner's de facto claim, which accrued before the current Eminent Domain Code was enacted in 2006, is barred by the 21- year statute of limitations. Id.

Thereafter, the parties filed their respective briefs and submitted the case to the trial court on the record. In October 2010, the trial court issued an order sustaining the Borough's objections and dismissing Owner's petition for viewers.

2. Trial Court Order/Centralia

In its order, the trial court stated it denied and dismissed Owner's petition pursuant to this Court's holding in Centralia. The facts in Centralia are unique. There, the Commonwealth, its Department of Community Affairs, and the Columbia County Redevelopment Authority (redevelopment authority), initiated a program to relocate the borough's residents due to health and safety threats from the long-burning fire in the borough's underground mines. A small number of residents declined to relocate. The redevelopment authority notified these residents that it would condemn their surface properties ...

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