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Redevelopment Authority of the City of York v. Dusan Bratic

May 10, 2012

REDEVELOPMENT AUTHORITY OF THE CITY OF YORK
v.
DUSAN BRATIC, APPELLANT



The opinion of the court was delivered by: James Gardner Colins, Senior Judge

Submitted: March 23, 2012

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY SENIOR JUDGE COLINS

Dusan Bratic (Condemnee) appeals the August 4, 2011 order of the York County Court of Common Pleas (trial court) overruling his preliminary objections to a declaration of taking filed by the Redevelopment Authority of the City of York (Condemnor). We affirm the order of the trial court.

In eminent domain proceedings, preliminary objections are the exclusive means by which a condemnation may be challenged, and are limited to: (i) the power or right of the condemnor to appropriate the condemned property unless it has been previously adjudicated; (ii) the sufficiency of security; (iii) the declaration of taking; and (iv) any other procedure followed by the condemnor. Act of May 5, 2006, P.L. 112, § 1, 26 Pa. C.S. § 306(a)(3). In the case before us, Condemnee objects neither to the sufficiency of the security, nor the declaration of taking; instead, the objections raised by Condemnee go to the procedure by which the Condemnor effected condemnation and the power of the Condemnor to do so.

Because Condemnee‟s objections rely almost entirely on fact, we will first address the detailed background put forth, and then proceed to a discussion of Condemnee‟s objections.

Background

On November 4, 2009, Condemnee was issued a Notice of Unsafe Structure letter (Notice 1) from the City of York (City) concerning the property located at 43-45 West Market Street in the City of York, York County, Pennsylvania (Property). (Notice 1, R.R. at 369a.) Notice 1 informed Condemnee, inter alia, that the building was designated an Unsafe Structure, Blighted Property, and Premises Unfit for Human Habitation, and that Condemnee had 15 days to respond in writing to the Bureau of Permits, Planning and Zoning (Bureau) stating his acceptance or rejection of the designation, as well as 30 days to appeal the determination to the Board of Appeals. (Id.) Notice 1 also informed Condemnee that if he failed to correct the deficiencies affecting the Property, he risked condemnation. (Id.) Condemnee responded in person on November 25, 2009, at the office of Jack Sands, the Bureau building code official who had authored Notice 1, and by letter dated the same day addressed to Mr. Sands, which stated:

Please accept this letter as confirmation of my discussion with you concerning the above referenced property. We hereby object to the classification of the property as unsafe for human habitation. As discussed, we intend to make the roof repairs as requested in your letter as well as stabilize the rear west wall.

(Letter from Appellant to Building Code Official Jack Sands at 1, R.R. at 136a; February 3, 2011 Appellant Affidavit (Appellant Affidavit) at 2, R.R. at 248a; January 10, 2011 Deposition of Jack Sands (Sands Dep.) at 9-11, R.R. at 422a- 424a.) Condemnee did not appeal the determination in Notice 1 to the Board of Appeals within the 30 days provided. (November 22, 2010 Deposition of Kevin Schreiber (Schreiber Dep.) at 9, R.R. at 320a.)

On February 17, 2010, a second Notice of Unsafe Structure (Notice 2) letter was sent to Condemnee. (Notice 2, R.R. at 372a.) Condemnee responded to Notice 2 by leaving a voicemail message for Mr. Sands advising that he would make repairs when the weather turned. (Sands Dep. at 15, R.R. at 428a; March 24, 2010, 8:56 a.m. Email from Jack Sands to Melinda McGee, R.R. at 446a.) Condemnee did not respond in writing to the Bureau within the 15 days provided or seek an appeal with the City Board of Appeals within the 30 days allowed. (Schreiber Dep. at 10, R.R. at 321a.)

On March 2, 2010, an inquiry made by the City to the York County Tax Claim Bureau revealed that the Property was delinquent on taxes owed to the county, municipality, and school district for the years 2008 and 2009. (York County Tax Claim Listings for 2010, R.R. at 281a.)

On April 14, 2010, Condemnee contacted Mr. Sands by telephone and informed him that remediation of the Property would begin in two weeks. (Appellant Affidavit at 2, R.R. at 248a; April 14, 2010, 3:04 p.m. Email from Jack Sands to Robert Behle et al., R.R. at 448a.) In response to an earlier inquiry, the City Housing Programs Coordinator received a letter on April 20, 2010, from the York Water Company that detailed the activity status for a list of properties; this list included the Property, which was reported as having an inactive water supply dating from July 24, 2004. (Letter from York Water Co. to Melinda McGee City Housing Programs Coordinator, R.R. at 380a.) On April 22, 2010, a Notice of Blighted Property was sent to Condemnee by certified mail and posted. (Notice of Blighted Property, R.R. at 375a; Picture of Posted Notice of Blighted Property, R.R. at 378a; U.S. Postal Service Certified Mail Delivery Record, R.R. at 379a.) The Notice of Blighted Property, inter alia, outlined the criteria by which the Property had been determined to be blighted, informed Condemnee of a 30-day time period within which he was required to correct the deficiencies or face condemnation, and alerted Condemnee to his right to appeal within 10 days to the Nuisance Abatement Board of Appeals. (Notice of Blighted Property, R.R. at 375a.) Condemnee again did not appeal. (Schreiber Dep. at 13, R.R. at 324a.) On April 28 and 30, 2010, the City Engineers, C.S. Davidson, Inc. (Engineers), visited the Property, conducted a structural assessment, and determined the final list of repairs. (Schreiber Dep. at 18, R.R. at 329a; Sands Dep. at 19, R.R. at 432a; Engineers Report 1, R.R. at 449a.) Condemnee joined the Engineers on their second day at the Property to discuss the wall stabilization needed in the basement. (Appellant Affidavit at 3, R.R. at 249a.) The major concern expressed by the City and the Engineers was that the Property needed to be stabilized before repairs could begin. (Appellant Affidavit at 3, R.R. at 249a; Appellant and Engineers Contract Agreement, R.R. at 270a; Sands Dep. at 19, R.R. at 432a; Engineers Report 1, R.R. at 449a.) The Engineers issued a report on May 4, 2010, detailing the recommended stabilization and remediation necessary for the Property. (Engineers Report 1, R.R. at 449a.)

Beginning in the final days of April 2010, Condemnee took steps to stabilize the Property. (Appellant Affidavit at 2-5, R.R. at 248a-251a.) Condemnee hired the Engineers used by the City and executed a May 20, 2010 contract with them that described the scope of services as: "[d]esign required foundation for new wall proposed in C.S. Davidson‟s prior report to the City based on actual conditions uncovered by the [Condemnee]." (Appellant and Engineers Contract Agreement, R.R. at 270a.)

On June 14, 2010, the appeal and remediation periods having passed, the Property was certified as blighted by the City Planning Commission. (City Planning Commission Meeting Minutes, R.R. at 406a-407a.) The following day, June 15, 2010, the Property was taken up by the City Council Vacant Property Review Committee, which upheld the designation of the Property as blighted. (City Council Vacant Property Review Committee Meeting Agenda, R.R. at 408a.) Next, on June 16, 2010, the Condemnor certified the Property as blighted and authorized the filing of a Declaration of Taking. (City Redevelopment Authority Meeting Minutes, R.R. at 411a.) On June 17, 2010, Condemnee applied to the City for a permit in order to proceed with the remediation of the Property. (City Construction Permit Application, R.R. at 141a.) The permit request was forwarded, on the same day, to the City Historical Architectural Review Board (HARB) for approval. (Id.)

Less than a month later, on July 15, 2010, the Condemnor filed the first Declaration of Taking with the York County Court of Common Pleas. (R.R. at 506a.) The Declaration of Taking was sent via certified mail to what was believed to be Condemnee‟s home address, but service was not achieved within the 30-day window. (Schreiber Dep. at 24, R.R. at 335a.) On July 22, 2010, HARB sent a letter to Condemnee that confirmed they were recommending approval of the permit application, that detailed the specific requirements imposed because of the Property‟s historic status, and that informed Condemnee the permit would be available at the Bureau following City Council approval on August 17, 2010. (Letter from HARB to Appellant, R.R. at 143a.)

At the request of the City, the Engineers again performed a site visit to the Property on August 9, 2010. (Engineers Report 2, R.R. at 104a.) The Engineers issued a report that recounted the continued deterioration of the property and significant movement in the severely out of plumb west wall. (Engineers Report 2, R.R. at 105a.) The report also stated that shoring had been done to the first and second floor framing since their visit in late April. (Id.) On August 17, 2010, the Declaration of Taking was reinstated by the Condemnor and this second Declaration of Taking was sent by regular mail to what was still believed to be Condemnee‟s home address. (Schreiber Dept. at 24, R.R. at 335a; September 3, 2010 Return of Service, R.R. at 497a.) Six days later, on August 23, 2010, Condemnee was issued his building permit. (City Construction Permit Application, R.R. at 141a.)

Due to the prior service issues, the City authorized the retention of a process server and, on September 3, 2010, Condemnee was served in person at his business address with the reinstated Declaration of Taking. (September 3, 2010 Return of Service, R.R. at 145a; Schreiber Dep. at 24, R.R. at 335a.) On September 21, 2010, Condemnee went to the Tax Claim Bureau of York and paid the delinquent taxes on the Property. (Tax Claim Bureau of York Receipt, R.R. at 178a.) The Condemnor filed a Petition for Appointment of Board of View on September 30, 2010. Condemnee then, on October 1, 2010, filed Preliminary Objections. The Condemnor withdrew its Petition for Appointment of Board of View on October 7, 2010.

From January to July of 2011 Condemnee and the Condemnor filed a variety of affidavits, motions, and briefs. Condemnee filed Amended Preliminary Objections on May 3, 2011. This matter was assigned to the trial court for a one- Judge disposition on July 6, 2011, and an opinion and order were issued August 4, 2011, ...


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