Argued March 12, 2014
Appeal from the Order of the Commonwealth Court dated July 30, 2012, reconsideration denied September 18, 2012 at No. 1423 CD 2011 which reversed/remanded the order of Berks County Court of Common Pleas, Civil Division, dated June 30, 2011 at No. 10-8544. Trial Court Judge: Jeffrey L. Schmehl, President Judge. Intermediate Ct. Judges: Bonnie Brigance Leadbetter, Judge, Mary Hannah Leavitt, Judge, James G. Colins, Senior Judge.
For The Schuylkill River Greenway Association, Appellant: Carl James Engleman Jr, Esq., Law Offices of Carl Engleman Jr, PC.
For Bern Township, Intervenor - Appellant: Josele Cleary, Esq. Morgan, Hallgren, Crosswell & Kane, P.C.
For Reading Area Water Authority, Appellee: Nicole L. Plank, Esq., Matthew Michael Setley, Esq., Michael A. Setley, Esq., Georgeadis Setley.
MR. JUSTICE SAYLOR. CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, MCCAFFERY, STEVENS, JJ. Mr. Chief Justice Castille, Messrs. Justice Eakin and Baer, Madame Justice Toddand Messrs. Justice McCaffery and Stevens join the opinion.
MR. SAYLOR, JUSTICE
The primary question raised is whether a municipal authority may exercise its eminent domain powers to condemn an easement over privately-owned land, where the sole purpose of the easement is to supply a private developer with land to install sewer drainage facilities needed for a proposed private residential subdivision.
The Schuylkill River Greenway Association (the Greenway), a non-profit corporation, owns a strip of land along the west bank of the Schuylkill River in Bern Township, several miles north of the City of Reading. The Greenway and the Township intend to build a public walking/recreational trail on this property as a segment of the larger Schuylkill River Trail. Situated immediately to the west of the Greenway Property is a 58-acre tract owned by Fortune Development, L.P. (Developer), a private developer. Developer seeks to
construct a 219-unit adult residential subdivision, known as Water's Edge Village, on this tract.
Water's Edge Village would require access to a clean water supply as well as sanitary sewer and stormwater sewer facilities. As for clean water, a water main passing through Ontelaunee (a municipality on the east side of the Schuylkill River) can potentially connect, underneath the Schuylkill River, with a proposed water main on the west side of the river, and then continue west to Water's Edge Village. For this to occur, however, the west-side main would have to run through the Greenway's property. A similar situation exists with regard to sanitary sewer and stormwater sewer outfall, albeit the water would flow in the opposite direction. In particular, treated sewage would combine with stormwater runoff and flow eastward through the Greenway's property, ultimately discharging into the Schuylkill River. The conduits for the clean water and the sewer outfall could be laid side-by-side within a 50-foot-wide underground space on the Greenway's property, connecting the Schuylkill River and Developer's land.
The Reading Area Water Authority (RAWA), a municipal authority created by the City of Reading, supported Developer's planned development and, to that end, tried to purchase an easement across the Greenway Property so that it could supply water to the proposed development. After negotiations with the Greenway failed to produce an agreement, RAWA adopted a resolution in February 2009, authorizing the use of its eminent-domain powers to condemn a utility easement across the Greenway Property connecting Developer's land with the Schuylkill River. The resolution reflected that the easement was to be condemned at Developer's request and that it would be used for water, sewer, and stormwater purposes specifically to enable Developer to build Water's Edge Village. The resolution also stated that Developer would be responsible for initiating eminent domain proceedings in conjunction with RAWA's solicitor, and would be required to pay all costs associated with such proceedings, including just compensation to the Greenway. The City of Reading then passed a resolution approving the RAWA resolution.
In light of the City's approval, in May 2010 RAWA filed a Declaration of Taking Complaint in the Berks County common pleas court, naming the Greenway as the sole defendant and attaching an appraisal, a bond, and a description of the property to be taken. The Complaint requested a decree condemning a 50-foot-wide easement across the Greenway Property, " to construct, maintain, [and] operate utility lines and appurtenance of a water main to be placed under the Schuylkill River for water, sewer and stormwater purposes," Complaint at ¶ 6, reprinted in R.R. 11a, and asked that the court value the easement at $3,500 based on the appraisal. According to the attached exhibits, the water main would travel west from Ontelaunee under the Schuylkill River and continue
west through the Greenway Property to Developer's property. The sewer main would travel south from a sewage treatment plant on Developer's property and intersect with a pipe which would drain a stormwater retention basin (also on Developer's property). The sewer main and the stormwater pipe would then combine into a single conduit which would travel east under Developer's property, and then continue east through the Greenway Property, within the same 50-foot-wide strip of land, ultimately emerging through a concrete headwall and discharging the effluent onto a six-foot downward slope covered by riprap.
The Greenway filed preliminary objections, alleging that: the taking was invalid under Pennsylvania's Property Rights Protection Act (PRPA), because it was being accomplished solely for the benefit of private enterprise, see 26 Pa.C.S. § 204(a) (generally prohibiting the use of eminent-domain powers to take private property " to use it for private enterprise" ); and the proposed easement was wider than necessary to accommodate RAWA's water supply line, which the Greenway viewed as the only service legitimately within RAWA's function. RAWA answered, asserting that it had statutory authority under the Municipality Authorities Act to condemn the easement, see 53 Pa.C.S. § 5607(d)(15), it had legitimate authority to accommodate sewer and stormwater facilities pursuant to the permission granted by ...