Eminent Domain Code; Assessment of Noncontiguous Tracts as One Parcel
Pignetti v. PennDOT, 2023 WL 1773952 (Pa. Cmwlth.) (unreported), allocatur granted Sept. 18, 2023, appeal dockets 26 & 27 EAP 2023
The Pennsylvania Department of Transportation (DOT) filed a Declaration of Taking pursuant to Section 302 of the Eminent Domain Code, 26 Pa.C.S. § 302, condemning a property owned by Gianni and Jennifer Pignetti (collectively, the Pignettis) which DOT identified as parcel 44 (Parcel 44), and a property owned by Gianni Pignetti, which DOT identified as parcel 45 (Parcel 45). As Commonwealth Court explained: “Parcels 44 and 45 are not contiguous, as a trapezoidal-shaped parcel of land separates the easterly line of Parcel 44 from the westerly line of Parcel 45 by approximately 10 feet at their closest points and 90 feet at their farthest points.” Slip op. at 2.
The Pignettis did not file objections to DOT’s declaration of taking. Instead, the Pignettis filed a Petition for the Appointment of a Board of Viewers with the trial court, requesting that the trial court appoint a board of viewers (the Board) to determine just compensation for DOT’s taking of Parcels 44 and 45, and that the Board assess damages as if the tracts were one parcel pursuant to Section 705 of the Eminent Domain Code, which provides that: “Where … a part of several noncontiguous tracts in substantially identical ownership which are used together for a unified purpose is condemned, damages shall be assessed as if the tracts were one parcel.” 26 Pa.C.S. § 705. DOT filed preliminary objections arguing, inter alia, that Parcels 44 and 45 should not be assessed as one parcel because Parcels 44 and 45 did not have substantially identical ownership. Commonwealth Court summarized the subsequent evidentiary hearing before the trial court as follows:
At the hearing, DOT challenged the items it identified in the Preliminary Objections, as well as whether the Pignettis used Parcels 44 and 45 together for a unified purpose. In response, Gianni Pignetti (Mr. Pignetti) testified regarding his use of Parcels 44 and 45. Mr. Pignetti stated he used Parcels 44 and 45 to store vehicles, equipment, and materials for his electrical business. He supplied several photographs of Parcels 44 and 45 and testified about what those photographs depicted. In addition, he supplied architectural drawings for a potential future development of Parcels 44 and 45. On cross-examination, Mr. Pignetti admitted his business office was approximately one mile from Parcels 44 and 45, and he only used Parcels 44 and 45 to store business equipment and supplies. He also admitted that although he always intended to develop Parcels 44 and 45, he never filed for permits, sought any zoning relief, or submitted a proposal to the planning commission.
Slip op. at 5 (record citations omitted). The trial court overruled DOT’s preliminary objections, found that Parcels 44 and 45 have substantially identical ownership and the Pignettis use them together for a unified purpose, and appointed a board of viewers to assess damages for DOT’s taking of the Pignettis’ two noncontiguous parcels of land as if the two parcels were one. DOT appealed.
Commonwealth Court reversed the trial court on the basis that the Pignettis did not establish they used their two parcels together for a unified purpose. As to the application of Section 705, Commonwealth Court observed that the legislative history indicates that Section 705 was intended to codifiy existing case law for noncontiguous tracts and “specifically cites to Morris v. Commonwealth, 80 A.2d 762 (Pa. 1951)”; thus, the court concluded that “the General Assembly unambiguously expressed its intent for Morris to govern the treatment of noncontiguous tracts.” Slip op. at 11. Commonwealth Court summarized the Morris standard as follows:
In discussing the standards to be applied, the Supreme Court noted the rule is: “ ‘In order that two properties having no physical connection may be regarded as one in the assessment of damages for right of way, they must be so inseparably connected in the use to which they are applied as that the injury or destruction of one must necessarily and permanently injure the other.’ ” Id. (quoting Kossler v. Pittsburg, Cincinatti, Chicago & St. Louis Ry. Co., 57 A. 66, 57 (Pa. 1904)) (emphasis added). In addition, the Court noted “proximity of location” was an “important element governing the basis of determination of damages where non-contiguous tracts are involved.” Id. at 764. Under the facts presented in Morris, the Court concluded the taking permanently injured all three tracts and permitted damages to be assessed with regard to the entire 87.72 acres. Id. at 763-64.
We have applied the standard set forth in Morris in our post-Code cases. See Powley v. Dep’t of Gen. Servs., 631 A.2d 743, 745 (Pa. Cmwlth. 1993) (“Under the unity of use doctrine, two separate properties are treated as one for eminent domain purposes when they are so inseparably connected by the use to which they are applied that injury to one will necessarily and permanently injure the other.”) (citing Werner v. Dep’t of Highways, 247 A.2d 444 (Pa. 1968)) (emphasis added).
Slip op. at 11-12. Commonwealth Court reversed the trial court on the basis that the trial court failed to apply the correct legal standard – whether the parcels are used together for a unified purpose – not merely whether the parcels are used for the same purpose. Commonwealth Court concluded:
Accordingly, for condemnees to prove their parcels are used together for a unified purpose, a condemnee must establish the parcels “are so inseparably connected by the use to which they are applied that injury to one will necessarily and permanently injure the other.” Morris, 80 A.2d at 763; Powley 631 A.2d at 745. The trial court determined the Pignettis used Parcels 44 and 45 together for a unified purpose because the Pignettis used Parcels 44 and 45 for the same purpose. See Trial Court Opinion, 10/6/21, at 5. While we agree the Pignettis used Parcels 44 and 45 for the same purpose, the trial court committed an error of law in using this as the legal standard.
In applying the correct legal standard of whether the Pignettis have provided sufficient evidence to establish they used Parcels 44 and 45 in such a way that taking one, or a part of one, would necessarily and permanently injure the other, we conclude they have not. Mr. Pignetti’s testimony regarding his purported future plans to develop Parcels 44 and 45 was not relevant, because only the use to which the property was placed at the time of the filing of the Declaration of Taking should be considered. See West Whiteland, 690 A.2d at 1270. The remainder of Mr. Pignetti’s testimony, at best, established he parked vehicles and stored equipment for his electrical business on Parcels 44 and 45. See R.R. at 378a-80a. Mr. Pignetti did not testify regarding the effects of the loss of one of the parcels on the other, or on his electrical business in general. This evidence, although sufficient to show the Pignettis used Parcels 44 and 45 together, was not sufficient to establish the parcels “are so inseparably connected by the use to which they are applied that injury to one will necessarily and permanently injure the other.” Morris, 80 A.2d at 763; Powley, 631 A.2d at 745.
Slip op. at 12-13.
The Pennsylvania Supreme Court granted allocatur as to the following issues:
(1) Did the Commonwealth Court err in disregarding established precedent by adding requirements to Eminent Domain Code Section 705 that are not contained in and are contrary to the clear wording of that Section[?]
(2) Did the Commonwealth Court err in reversing the Trial Court’s application of Eminent Domain Code Section 705 when Condemnees met the clear requirements of that Statute[?]
For more information, contact Kevin McKeon or Dennis Whitaker.