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Reading Area Water Authority v. the Schuylkill River Greenway

July 30, 2012

READING AREA WATER AUTHORITY, APPELLANT
v.
THE SCHUYLKILL RIVER GREENWAY ASSOCIATION AND BERN TOWNSHIP



The opinion of the court was delivered by: Bonnie Brigance Leadbetter, Judge

Argued: May 15, 2012

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

OPINION BY JUDGE LEADBETTER

The Reading Area Water Authority (RAWA) appeals from the order of the Court of Common Pleas of Berks County (trial court) sustaining the preliminary objections of Appellees, the Schuylkill River Greenway Association (the Greenway) and Bern Township (the Township), and dismissing the Declaration of Taking filed by RAWA. We reverse and remand.

This appeal arises from the condemnation of land in Bern Township, Berks County, for the construction, maintenance and operation of utility lines and appurtenance of a water main. Appellees' property*fn1 is a strip of land which runs along the Schuylkill River on one side and adjoins property owned by Fortune Development, L.P. (Fortune) on the other. Fortune is the developer of a proposed 219-unit adult residential subdivision known as Water's Edge Village.

On February 9, 2009, RAWA adopted Resolution No. 2009-2 (RAWA Resolution), which authorized RAWA to exercise its eminent domain power to condemn a utility easement across the Greenway's property. The RAWA Resolution stated that the utility easement would be used for water, sewer and storm water purposes. The RAWA Resolution also provided that Fortune would be responsible for all costs associated with the eminent domain proceeding including any amount of just compensation. On July 27, 2009, the Reading City Council adopted Resolution No. 91-2009 (Council Resolution)*fn2 which authorized RAWA "to acquire an easement of sufficient size to accommodate certain sanitary sewer facilities and certain storm water facilities, in addition to water lines of the [RAWA]." Reproduced Record (R.R.) at 31a. On May 4, 2010, RAWA filed a Declaration of Taking (the Declaration) to condemn a permanent easement fifty-feet wide and approximately 133 feet long across the Greenway's land, "to construct, maintain, [and] operate utility lines and appurtenance of a water main to be placed under the Schuylkill River for water, sewer and storm water purposes." Declaration at ¶ 6; R.R. at 2a. The water main will travel west from Ontelaunee Township under the Schuylkill River then under the Greenway's property to the Fortune development. The sewer main will travel south from a package treatment plant on Fortune's property and intersect with the storm water management pipe, which drains a water retention basin. The sewer main and the storm water pipe combine into a single pipe which travels west under Fortune's property and then under the Greenway's property, coming out through a concrete headwall constructed over a six foot downward slope and discharging the effluent into a riparian buffer zone area along the Schuylkill River.

Appellees filed preliminary objections and a supporting brief arguing that the taking was invalid, asserting that the size of the proposed easement is larger than necessary to accommodate RAWA's water line, a service that all parties agree is a public use appropriately provided by RAWA, and the condemnation violates Section 204(a) of the Private Property Protection Act, 26 Pa. C.S. § 204(a), which prohibits the taking of private property in order to use it for private enterprise.*fn3 RAWA filed an answer to the preliminary objections and a brief, asserting that the preliminary objections should be overruled because RAWA had the authority to condemn the land pursuant to statute. Thereafter, the Township was permitted to intervene by agreement of the parties.

On August 31, 2010, the trial court held a hearing. Appellees offered the testimony of the Township Manager, Brian Potts, who primarily testified regarding the possible detrimental effects that the easement would have on the construction of a walking trail that the Township intends to construct. The trial court also heard oral argument on the preliminary objections. Appellees clarified that they were not disputing RAWA's right to condemn a thirty-foot easement for installation of water lines, but were disputing RAWA's authority to condemn land for the installation of sewer and storm water lines, an end wall, grading, and other improvements. August 21, 2010 Hearing, Notes of Testimony (N.T.) at 30.

Appellees argued that the taking was excessive with regard to the storm water management facilities and the "privately-owned sanitary facilities" as the taking of land for these facilities would be purely for the benefit of a private enterprise. Id. at 34. RAWA argued that the provision of water and sewer services are inherently public purposes and that RAWA had obtained from the Reading City Council all the necessary authorizations required to exercise eminent domain powers for purposes stated in the Declaration.

On June 30, 2011, the trial court issued an order sustaining the preliminary objections. RAWA filed a timely appeal to this court. The trial court, in a subsequently filed opinion, stated that the preliminary objections were properly sustained because RAWA was taking private property to serve a private enterprise and the size of the easement sought was not reasonably related to RAWA's only public purpose, the provision of water. The trial court concluded that the "primary and paramount benefactor of the proposed condemnation" for sewer and storm water facilities was Fortune and not the general public and that the "fifty-foot wide easement was excessive in size, as half of that land would be used for private sewage and stormwater facilities." Trial Court Opinion at 4-5; R.R. at 66a -- 67a. The trial court stated that "[u]nder the guise of expanding their customer base and providing water to the public, RAWA is attempting to achieve its true goal and take land from one private owner and give it to another." Id. at 6; R.R. 68a.

RAWA appeals to this court, asserting that the trial court erred in sustaining the preliminary objections because the condemnation of property to provide all three facilities, water, sewer and storm water, is inherently a public use and any benefit accruing to a private developer does not strip the condemnation of its public nature. We agree.

The trial court relied upon Bell Atlantic Mobile Systems, Inc. v. Zoning Hearing Board of the Township of O'Hara, 676 A.2d 1255 (Pa. Cmwlth. 1996). Bell Atlantic is not an eminent domain case, but rather a zoning case construing the scope of an existing easement. The easement specifically granted access only for the purpose of constructing and maintaining a municipal water system. Bell Atlantic sought to use the easement to construct and operate a cellular telephone system. This Court found the proposed use was not within the scope of the easement's original purpose, water supply, because the proposed use, cell phone tower antenna, was not related to water supply. Id. at 1270.

The trial court also relied upon In re Condemnation by the Beaver Falls Municipal Authority, 960 A.2d 933 (Pa. Cmwlth. 2008). In Beaver Falls, a dispute arose between a landowner and an authority constructing a water tank, ancillary facilities and an access road pursuant to an easement agreement. The authority failed to stockpile the excess soil in the location designated by the landowner as required by the easement agreement. Thereafter, the authority filed a declaration of taking condemning five acres of land in fee simple so that the authority would not be required to relocate the excess soil. The trial court sustained the preliminary objections, finding that the taking far exceeded the estate reasonably required for the project's purpose. Id. at 938. The trial court determined the authority's reasonable needs consisted of an access road to the water tank and storage area to stockpile the excess soil and that those needs were satisfied by the water line easement agreement. Id. This Court affirmed, rejecting the authority's attempt on appeal to reframe the issue as a question of the propriety of the stated purpose of the taking rather than a question of the excessiveness of the taking. Id. at 940.

The trial court concluded that just as wireless services in Bell Atlantic were not related to the authority's public purpose regarding the water system, so too Fortune's sewer and storm water facilities are not related to RAWA's stated public purpose. The trial court relied upon Beaver Falls to conclude that RAWA overreached and took more land than necessary to effectuate its stated purpose and that the taking was excessive because the "twenty feet [was] being ...


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