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William Schenk & Sons v. Northampton, Bucks County, Municipal Authority

Commonwealth Court of Pennsylvania

July 30, 2014

William Schenk & Sons; Silver, Green and William Schenk & Sons; Silver, Green, Winitsky and William Schenk & Sons; Glendale Enterprises, Inc.; Huntingdon Valley Enterprises, Inc.; William Schenk & Sons, equitable owner; Silver, Green and William Schenk & Sons, Inc., equitable owner; Huntingdon Valley Enterprises, equitable owner, Appellants
v.
Northampton, Bucks County, Municipal Authority

Argued,  June 20, 2014

Appealed from No. 2011-00550-37. Common Pleas Court of the County of Bucks. McMaster, J.

Joseph M. Bagley, Blue Bell, for Appellants.

Lauren A. Gallagher, Trevose, for Appellee.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge. OPINION BY JUDGE BROBSON.

OPINION

BROBSON, JUDGE

Nonresidential property owners (Property Owners)[1] appeal from an order of the

Page 821

Court of Common Pleas of Bucks County (trial court). The trial court overruled Property Owners' preliminary objections to the petitions for appointment of a Jury of View (Petitions) filed by the Northampton, Bucks County Municipal Authority (Authority).[2] The Authority filed the Petitions in order to recoup the costs of extending a public sewer system into the area in which Property Owners' properties are located. We affirm the trial court's order, but on slightly different grounds.

I. BACKGROUND

The Authority and Property Owners acknowledge that, on April 30, 2008, the Pennsylvania Department of Environmental Protection issued an order directing the Township to extend its public sewer facilities into certain areas, including what is referred to as " Sewer District 3," in which all of the subject properties are located. On or about December 15, 2010, the Authority completed construction of the sewer system extension into Sewer District 3.

On February 2, 2011, following the completion of the sewer extension project, the Authority adopted Resolution 2011-1098 (Resolution 1098), relating to the costs of the construction of the sewer system expansion into Sewer District 3. In Resolution 1098, the Authority notes its powers under the Municipal Authorities Act (Act)[3] to assess and recover the costs of sewer construction, and it specifically notes that the Act " provide[s] that the benefit assessment shall be assessed in a manner provided under the Act for the exercise of eminent domain." Resolution 1098 indicates that " the Authority has determined that each of the Residential Properties abutting the [construction] Project have been presently benefitted by the Project." (Emphasis added.) Resolution 1098 thereafter provides:

[I]n accordance with the benefit assessment method provided for in the Act, the Authority Board has determined that the fair and reasonable benefit assessment for each of the Residential Properties benefitted by the Project shall be in the amount of [$1,878.44] after consideration of all relevant assessment factors and adjustments for all governmental grants acquired by the Authority, and
. . .
[T]hat the owners of record of each of the Residential Properties may execute and present to the Authority on or before April 1, 2011, a document entitled, " Western End Sanitary Sewer Project,

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Phase II Residential Public Sewer Payment Plan Agreement (" Agreement" ) . . . and,
. . .
[T]hat any owner of record of the Residential Properties within the Project that have failed or refused to enter into the Agreement, the Authority's solicitor is authorized to file Petitions for Appointment of Board of View to Assess Benefits and thereafter to collect the ...

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