Adequacy of Condemnation Plan; Eminent Domain Code; Preliminary Objections

Szabo v. Commonwealth, Department of Transportation, 159 A.3d 604 (Pa. Cmwlth. 2017), allocatur granted Oct. 12, 2017, appeal docket 46 WAP 2017

Background:

The Szabos own real property improved with a commercial retail business. PennDOT filed a Declaration of Taking under the Eminent Domain Code (Code) with the Washington County common pleas court to acquire property, a portion of which was owned by the Szabos, for the expansion of State Route 19. Plans illustrating the proposed condemnation, the property lines and ownership interests of the affected properties, accompanied the Declaration. Some property lines were labeled as “probable [sic] correct.” The Szabos filed a Petition for Appointment of Viewers to determine the amount of just compensation due to the condemnation and the Board of View scheduled a hearing.

The Szabos hired a registered professional surveyor to survey of their property. While so doing, the surveyor discovered that the plans attached to PennDOT’s Declaration misidentified property owned by the Szabos as owned by other entities, thus understating the amount of the Szabos property taken by the condemnation. Put another way, PennDOT condemned more of the Szabos’ property than the Declaration indicated. The Szabos immediately brought the discrepancies to PennDOT’s attention but the parties could not reach an agreement. The Szabos filed a Petition for Evidentiary Hearing with the trial court seeking an evidentiary hearing to determine the nature and extent of the property interests condemned and to identify the owners thereof correctly. The trial court denied the Szabos’ Petition. The Szabos filed a Motion for Reconsideration and In the Alternative for Certification of Permission to Appeal. Commonwealth Court granted the Szabos’ petition for permission to appeal.

The Szabos raised two issues on appeal: 1) did the trial court err when it held that PennDOT’s Declaration did not deprive the Szabos of adequate notice of the extent or effect of the taking; and 2) did the Szabos’ failure to file preliminary objections waive their right to raise the inadequacy of the plan attached to the Declaration. As to the latter, the Szabos argued that the Declaration did not describe adequately the extent or effect of the taking of their property, that an exception to the rule requiring the filing of preliminary objections within 30 days therefore should apply, and that the trial court should have conducted an evidentiary hearing. The crux of the Szabos’ appeal was that PennDOT’s Declaration understated the Szabos’ property interests such that it affected a taking of more of the Szabos’ land than indicated in the Declaration.

PennDOT argued in response that the Declaration contained plans depicting the areas to be condemned thus providing the Szabos with notice of the parcels being condemned. PennDOT acknowledged that the plans attached to the Declaration included the disputed parcels and that those parcels are owned by other parties. Notwithstanding the error, PennDOT argued that the Szabos received the Notice of Taking and met twice with PennDOT which more than satisfied the statutory requirements of the Code thus triggering the obligation to file preliminary objections.

Commonwealth Court began its analysis by noting that Section 305 of the Code requires the condemnor to give written notice to the condemnee of the filing of the declaration of taking within 30 days after filing. The written notice must contain, among other items, a reasonable identification of the property. 26 Pa. C.S. § 305(c)(8). PennDOT filed the Declaration on January 10, 2013along with plans that purported to illustrate the proposed taking and ownership of the affected property. As the court noted, these plans incorrectly identified property owned by the Szabos as owned by other parties. The court then applied the following analysis:

In West Whiteland Associates v. Commonwealth, Department of Transportation, 690 A.2d 1266 (Pa.Cmwlth. 1997), this Court noted that the plot plans and property plat filed with the declaration of taking and served upon the condemnee are part of, and indeed, the heart of the declaration of taking. Id. at 1269. It is only by reference to such plans that one can determine what property is the subject of the condemnation. Id.

This Court has held on several occasions how crucial it is that plans attached to the declaration of taking be specific in describing property that is condemned and how important it is to properly identify that property at the earliest stages of the taking. In re Commonwealth, Department of General Services, 714 A.2d 1159 (Pa.Cmwlth. 1998) (landowner did not waive issue of de facto taking by failing to raise that issue in preliminary objections where the declaration of taking did not adequately establish the extent or effect of the taking); Commonwealth, Department of Transportation v. Greenfield Township-Property Owners, 135 Pa.Cmwlth. 113, 582 A.2d 41 (Pa.Cmwlth. 1990) (landowners’ failure to file preliminary objections to the declaration of taking did not preclude them from alleging a de facto taking where landowners were unaware that the condemnation would leave property landlocked).

Instantly, the parcels in question in this condemnation were marked on the plans filed with the Declaration as belonging to other parties. (R.R. 7a-12a.) Not until a surveyor was engaged was it discovered these parcels were owned by the Szabos and the Szabos were not compensated for the taking of that property. In the Declaration, [PennDOT] failed to accurately identify that property which was part of the taking. This failure resulted in a taking of more of the Szabos’ property than indicated in the plans. Therefore, [PennDOT] did not provide adequate notice of the extent and effect of the taking.

The Szabos next argue that their failure to file preliminary objections raising the inadequacy of the plan attached to the Declaration of Taking to establish the extent or effect of the taking did not constitute a waiver thereof. [PennDOT] did not supply plans that properly identified the owners of the property that was part of the taking. The Szabos argue that if this Court follows the reasoning of the trial court, that the Declaration was sufficient because it correctly listed what, if not whose, property [PennDOT] desired to take (despite having inaccurately identifying the owner), the burden of preparing accurate plans falls to the condemnee. It would also force a condemnee to file preliminary objections to every declaration of taking regardless of whether the basis for the preliminary objections exists lest rights be waived forever.

The Szabos contend there is no prejudice to [PennDOT] by holding an evidentiary hearing to ensure the appropriate property owners are paid just compensation as required by Article I, Section 10 of the Pennsylvania Constitution. Otherwise, parties that do not own the property will be compensated for the Commonwealth’s exercise of eminent domain over the Szabos’ property.

159 A.3d at 607 (footnote omitted).

PennDOT argued that filing preliminary objections within 30 days of the notice of condemnation is the exclusive means available to challenge the nature and extent of the property interest held by the condemnee. PennDOT further posited that the description of the property is so necessary to the eminent domain process that it needs to be decided at the earliest possible stage by the filing of preliminary objections to avoid potential prejudice. On that basis, PennDOT contended that the Szabos’ failure to file preliminary objections within 30 days of the notice of taking meant that they should not be entitled to an evidentiary hearing on the issue of the extent and nature of the taking. The Court offered the following on PennDOT’s argument:

In City of Pittsburgh v. Gold, 37 Pa.Cmwlth. 438, 390 A.2d 1373 (Pa.Cmwlth. 1978), this court held that a landowner who suffered damages to his property as the result of a condemnation proceeding but who had not filed preliminary objections to the declaration of taking was not precluded from alleging a de facto taking because the landowner learned of the damage to his property two years after the declaration of the taking was filed.

Although Section 306(a)(1) of the Code requires that preliminary objections be filed within 30 days of the filing of the declaration of taking, the courts have recognized that a condemnee does not waive such issues where the declaration of taking does not adequately establish the extent or effect of the taking. In re Department of General Services, 714 A.2d 1159 (Pa.Cmwlth. 1998).

In In re Department of General Services, the Department of General Services (DGS) was empowered to acquire land that was an abandoned railroad bed to turn it into a bike/hike trail. Curry Lumber Company (Curry) owned 1124 acres of land, a portion of which was located between the railroad bed and the river. DGS filed a declaration of taking for a portion of Curry’s land that was part of the railroad bed and compensated Curry for the taking. DGS moved forward with the trail project. Three years later, Curry filed a Petition for the Appointment of Viewers because of lost access to timber, riparian rights, and real property between the condemned property and the river. DGS filed preliminary objections, which the trial court denied, and DGS appealed. This Court held that “if the preliminary objections raise an issue of fact, the resolution of which is necessary for determining whether a de facto taking has occurred, the court must hold an evidentiary hearing.” Id. at 1162. The Court determined the record supported the conclusion that the declaration of taking did not “adequately establish the extent of effect of the taking” and therefore the issue of a de facto taking was not waived. Id.

Here, [PennDOT] did not adequately identify the property being taken in the plans filed with the Declaration of Taking. But for their engagement of a surveyor, the Szabos would not have known the full extent of the taking of their property. The burden of accurately identifying the property taken through the exercise of eminent domain should not fall on the condemnees. Section 302 of the Code requires the condemnor, and not the property owner, to properly identify those affected by the taking.

159 A.3d at 608 (footnote omitted).

Based on the foregoing, Commonwealth Court summarized its holding as follows:

It is clear the plans filed with the Declaration of Taking did not adequately establish the extent or effect of the taking and, therefore, the Szabos have not waived their right to raise the issue in preliminary objections to the Declaration. For the reasons stated, we reverse the Order of the trial court and remand this matter to the trial court for an evidentiary hearing to determine the property interests affected by the taking and the proper compensation for the condemned property.

PennDOT filed a Petition for Permission to Appeal which the Supreme Court granted on October 12, 2017, limited to the following issues as stated by PennDOT and rephrased for clarity:

1. By failing to file preliminary objections pursuant to section 306 of the Eminent Domain Code, 26 Pa. C.S. § 306, did Respondents waive their right to assert ownership and seek additional just compensation for the condemnation of two parcels which were allegedly mistakenly depicted as belonging to two other legal entities in plans attached to the declaration of taking?

2. Did Petitioner’s alleged mistake in the plans attached to a declaration of taking, constitute the failure to adequately establish the extent or effect of the taking, thereby excusing Respondents from filing preliminary objections under section 306 of the Eminent Domain Code. See Pennsylvania Dep’t Gen. Servs., 714 A.2d 1159 (Pa. Commw. 1998) and Pennsylvania Dep’t Trans. v. Greenfield Twp. Prop. Owners, 582 A.2d 41 (Pa. Commw. 1990)?

For more information, contact Kevin McKeon or Dennis Whitaker