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Griffith v. Millcreek Township

Commonwealth Court of Pennsylvania

July 30, 2019

Richard E. Griffith and Noreen F. Griffith, husband and wife
Millcreek Township, Appellant

          ARGUED: May 6, 2019




         Millcreek Township appeals from an order of the Court of Common Pleas of Erie County (trial court) overruling the Township's preliminary objections and granting the petition for appointment of a board of viewers. The petition, filed by Richard E. Griffith and Noreen F. Griffith, husband and wife (Landowners), alleged a de facto taking of property[1] when a 2013 storm water landslide rendered their home uninhabitable. In this appeal, we must consider the difference between such a taking and a simple tort claim in order to determine whether the damages to the Griffith property (the Property) were the immediate, necessary, and unavoidable consequence of the Township's exercise of its eminent domain power. For the reasons that follow, we reverse.

         The pertinent background of the subdivision is as follows: In March 1966, the original owners of the entire parcel of land encompassing the Subdivision (Developers) applied to the Township for approval of the plot plan for Section 1 of the Subdivision. (Trial Court's Op. at 1-2.) In the ensuing decades, they developed and constructed six sections. In a September 1987 letter, the Township engineer congratulated Developers on completion of the subdivision and informed them that the Township supervisors had officially released the remaining bonds. (Stipulated Fact "S.F." Nos. 95-96.) Accordingly, with the Township's September 1987 accepted dedication of the storm water pipes, the Township assumed ownership and responsibility for maintaining the subdivision's entire storm water system. (Trial Court's Op. at 16.)

         With respect to the Property itself, in 1979 Developers conveyed the original Lot 13, subsequently known as 5020 Saybrook Place, to the Venables. In 1992, Mr. Griffith, one of the current Landowners, purchased the Property from the Venables. In 2006, Mr. Griffith conveyed the Property to Landowners in a quitclaim deed. In 2012, the owners of adjoining Lot 12, the Mrazes, divided it into Lots 12 and 12A. Following the conveyance of Lot 12A, Landowners executed a consolidation deed merging Lots 12A and 13 into a single parcel. (Id. at 3.) That irregularly shaped parcel encompasses 4.09 acres, overlooks Lake Erie, and features a single-family home near the southeastern corner of the lot. (S.F. No. 3.) The "Property is bounded on the north by a crest of a bluff above Lake Erie, on the south by a public street named Saybrook Place, on the west by a residential lot, and on the east by a residential lot and ravine. . . ." (S.F. No. 4.) The corner of the house closest to the ravine is twenty feet west of it. (Id.) In addition, "[n]umerous large, heavy, and tall trees with trunks as much as forty inches in diameter existed along the entire length of [the] Property's eastern boundary along the [r]avine." (Id.)

         As for the September 2013 event that precipitated Landowners' petition, a massive landslide of trees and soil fell along the entire eastern boundary of the Property forcing Landowners to abandon their home. (Trial Court's Op. at 3.) In describing the landslide, the trial court stated:

The subsidence was so severe it removed the soil supporting the concrete footers for the eastern half of the Griffiths' residence. This loss in fundamental support impacted the entire structural integrity of [the] home, rendering it uninhabitable. An open fault line was created on the level area of [Landowners'] property presenting an ominous and dangerous condition.


         As for the subdivision's storm water system, the pertinent mechanics are as follows: Two large pipes discharging storm water into the ravine aim directly at the west bank of the ravine at the point where the eastern part of the Property collapsed. (Id. at 23.) The thirty-six inch pipe, which draws storm water from Sections 1 and 2 of the subdivision and runs through drainage Easement No. 1, is situated one or two feet above the bottom of the ravine. The forty-two inch pipe, which draws storm water from the remaining sections and diverts it through Easement No. 2 to Easement No. 1, is situated about four feet above the bottom of the ravine and directly above the smaller pipe. (Id.) "Both pipes have an open flow of water descending from these elevated positions directly onto the ground." (Id.) Notably, there is no anti-erosion landscaping or outlet protection such as headwalls, wing walls, or riprap rock at the end of the two pipes to dissipate the energy of the water cascading directly onto the hard clay bottom of the ravine. (Id. at 23-24.)

         Also with regard to the storm water system, the trial court observed that the Township in 1979 permitted the elimination of a planned Easement No. 3 and a discharge point for storm water into a sedimentation basin. (Id. at 13-14.) In contemplating the elimination, the trial court observed that the only storm water being discharged into the ravine when the building permit was issued to the Venables, the original owners, came from Section 1.[2] (Id. at 14.) With the Township's 1979 acceptance of plans without Easement No. 3, "[a]ll of the storm water that was intended to be discharged within Easement No. 3 instead got diverted into larger pipes that ultimately got discharged through the [forty-two]-inch pipe in Easement 1." (Id.) The trial court characterized the elimination as having "a direct impact on the reasons why the . . . landslide occurred . . . ." (Id.) Accordingly, the trial court concluded that "[t]he overwhelming weight of the engineering evidence is that the Township's storm water system . . . was the primary cause of accelerated erosion of the west ravine bank along the eastern border of [Landowners'] property." (Id. at 24.)

         In August 2015, Landowners filed their petition alleging that the Township's design, construction, review, acceptance, operation and/or maintenance of the subdivision's storm water system caused a landslide on the property, rendered their home uninhabitable, and constituted a de facto taking under Section 502 of the Eminent Domain Code, 26 Pa.C.S. § 502.[3] In September 2015, the Township filed preliminary objections asserting that there was no taking, that Landowners improperly asserted a trespass claim, and that the petition was untimely. In March 2018, the parties entered into a comprehensive stipulation of facts. Subsequently, the trial court conducted an April 2018 hearing at which only Mr. Griffith and his expert testified. In July 2018, the trial court overruled the preliminary objections and granted the Petition. The Township's appeal followed.[4]

         Pursuant to 26 Pa.C.S. § 502(c)(1), the owner of a property interest may file a petition for the appointment of viewers seeking compensation for an alleged injury to property by asserting "that the owner's property has been condemned without the filing of a declaration of taking." There is a heavy burden of proof in de facto taking cases. Rowland v. Dep't of Gen. Servs., 820 A.2d 896, 899 (Pa. Cmwlth. 2003). Specifically, the owner must allege and prove the following: 1) condemnor has the power to condemn the land under eminent domain procedures; 2) exceptional circumstances have substantially deprived the owner of the use and enjoyment of the property; and 3) the damages sustained were the immediate, necessary, and unavoidable consequences of the exercise of the power of eminent domain. Appeal of Jacobs, 423 A.2d 442, 443 (Pa. Cmwlth. 1980). The power of eminent domain has been characterized as "the power to take property for public use" without the consent of the property owner. Hill v. City of Bethlehem, 909 A.2d 439, 444 (Pa. Cmwlth. 2006). We have noted that, "a de facto taking must result from a governmental body's actual exercise of the power of eminent domain." Rowland, 820 A.2d at 898.

         However, to the extent that the "actual exercise of the power of eminent domain" suggests actions identical to a de jure condemnation but without the filing of a declaration, such as the acquisition of property by consent, [5] our cases make clear that is too restrictive a view. Rather, "[a] 'de facto taking' occurs when an entity clothed with the power of eminent domain has, by even a non-appropriative act or activity, substantially deprive[d] an owner of the beneficial use and enjoyment of his property." Genter v. Blair Cty. Convention & Sports Facilities Auth., 805 A.2d 51, 55 (Pa. Cmwlth. 2002). Further, "a de facto taking requires that the injury complained of [be] a direct result of intentional action by an entity incidental to its exercise of its eminent domain power." DeLuca v. Mountaintop Area Joint Sanitary Auth., 166 A.3d 553, 562 (Pa. Cmwlth. 2017) (emphasis added); see also Williams v. Borough of Blakely, 25 A.3d 458, 463 (Pa. Cmwlth. 2011). On the other hand, where injuries result from the negligence of a condemning body's agents, there is no de facto taking. Jacobs, 423 A.2d at 443; see also Williams, 25 A.3d at 467 n.6 (tort claims such as trespass do not support a claim for a de facto taking). In this regard, it ...

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