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Bear Creek Township v. Joan H. Riebel

February 13, 2012

BEAR CREEK TOWNSHIP
v.
JOAN H. RIEBEL, HAROLD J. HARRIS AND BRIAN W. HARRIS AND METROPOLITAN DEVELOPMENT GROUP, INC.



Appeal of Joan H. Riebel, Harold J. Harris, and Brian W. Harris

The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Argued: December 13, 2011

BEFORE: HONORABLE DAN PELLEGRINI, Judge*fn1 HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge

OPINION BY JUDGE LEAVITT

Joan H. Riebel, Harold J. Harris, and Brian W. Harris (Landowners) appeal an order of the Court of Common Pleas of Luzerne County (trial court) that overruled their key preliminary objection to Bear Creek Township‟s (Township) Declaration of Taking.*fn2 The trial court held that the Township‟s taking of land for a charter school and a recreational area was authorized by The Second Class Township Code.*fn3 Concluding that the legislature did not confer power upon the Township to condemn land to be used primarily for a charter school, we reverse the trial court.

At issue are 48.86 acres of undeveloped land owned by Landowners. The Bear Creek Community Charter School (Charter School) is located on land adjacent to Landowners‟ property and needs more land in order to enlarge its school facilities. To that end, Charter School tried, without success, to purchase property from Landowners.

Thereafter, Charter School, the Bear Creek Foundation (Foundation)*fn4 and the Township devised a plan to allow Charter School to secure a new school building and develop recreational facilities for Township residents. These facilities would include, inter alia, baseball, softball, and soccer fields, a community room, basketball courts, and a nature trail. Public hearings were conducted on the plan.

On September 29, 2009, the partiesentered into a Development Agreement. Under this agreement, the Township agreed to condemn 48.86 acres of Landowners‟ property and then convey it, in fee simple, to the Foundation. Supplemental Reproduced Record at 10b-16b (Supp. R.R. ___). The agreement made the Foundation responsible for the cost of the entire project. This included the payment of Landowners‟ just compensation; the construction of the new school building; and the development of recreational facilities adjacent to the school. The Public Use and Access Agreement, also executed by the parties on September 29, 2009, provided that the public would be permitted access to the recreational facilities as well as to the library and community room in the school. The hours of public access to the Charter School‟s library and community room, along with adjacent parking lots and one recreational field, would be limited to "reasonable hours" to be determined by the Charter School.*fn5 Supp. R.R. 40b. However, all other amenities, such as the nature trail and remaining athletic and recreational fields, would be open to the public every day from dawn to dusk. Supp. R.R. 40b. The Foundation‟s articles of incorporation provide that upon dissolution, its assets would be distributed for an exempt purpose within Section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. §501(c)(3), or distributed to a federal, state, or local government agency for a public purpose. In addition, the Public Use and Access Agreement gave the Township a right of first refusal should the Foundation ever decide to sell any part of the land.

On October 5, 2009, the Township filed a Declaration of Taking, and Landowners responded with preliminary objections. Landowners asserted that the declaration was fatally deficient because it did not cite the specific provision of The Second Class Township Code that authorized the taking and that, in any case, that statute did not authorize a condemnation for the purpose of building a charter school. Landowners also argued that the Eminent Domain Code, 26 Pa. C.S. §§101-1106, did not permit the Township to condemn property for the purposes stated in the Declaration of Taking. Finally, Landowners claimed that the Township was required to post additional security, in the form of a bond, because its tax base was insufficient to guarantee the Township‟s ability to pay just compensation.

The trial court conducted two days of hearings on Landowners‟ preliminary objections, and on December 13, 2010, the trial court entered its order. The order sustained Landowners‟ preliminary objection that the declaration did not contain specific statutory references by which the condemnation was authorized but also granted leave to the Township to amend the declaration with these citations. The order overruled Landowners‟ remaining preliminary objections, including their central objection that the Township lacked authority to condemn their land for the purpose of constructing a charter school building. Landowners now appeal to this Court.*fn6

On appeal, Landowners raise three principal issues for our review. They are: (1) whether the Township had the power to condemn their land to build a charter school, even one with recreational facilities open to the public; (2) whether the trial court erred in failing to require the Township to post a bond; and (3) whether the trial court erred in permitting the Township to file an amended declaration of taking. In their first issue, Landowners have raised new legal theories not raised in their preliminary objections. They assert that the Township‟s condemnation was prohibited by the Property Rights Protection Act, 26 Pa. C.S. §§201-207;*fn7 that the Township unlawfully delegated its powers of eminent domain to the Foundation; and that the Declaration of Taking did not contain a sufficient description of the purpose of the condemnation.

The Township responds, first, that Landowners have waived all issues, save those raised in their preliminary objections. We agree.

Preliminary objections are the exclusive method of challenging a declaration of taking. Further, the Eminent Domain Code requires all preliminary objections to be raised at one time and in one pleading. 26 Pa. C.S. §306(d). A "[f]ailure to raise [an issue] by preliminary objections . shall constitute . waiver." 26 Pa. C.S. §306(b). Accordingly, we confine our review to those issues Landowners raised in their preliminary objections. They are: whether the Township‟s condemnation was for a purpose authorized by The Second Class Township Code; whether the inclusion of a school justified the condemnation because it was "incidental" to the recreational purpose; whether the trial court erred in failing to require the Township to post a bond; and whether the trial court erred in allowing the Township to amend its Declaration of Taking to add the specific provisions of statutes upon which the taking was made.

In their first issue, Landowners argue that the trial court erred in using a "public purpose test" to determine the propriety of the condemnation rather than applying Section 2201 of The Second Class Township Code, 53 P.S. §67201. Landowners argue that the recreational facilities proposed by the Township were made part of the condemnation only to provide cover for the Township‟s true objective, which is to take their land ...


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