In re Condemnation by the East Nittany Valley Joint Municipal Authority

Page 1

In Re: Condemnation by the East Nittany Valley Joint Municipal Authority of Certain Real Property Located in Porter Township and Lamar Township, Clinton County Appeal of: Martin M. Salinas and Tawnya T. Salinas.

No. 2752 C.D. 2002.

Commonwealth Court of Pennsylvania.

Submitted July 9, 2003.

Filed August 12, 2003.

BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE RENÉE L. COHN, Judge HONORABLE ROBERT SIMPSON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COHN

Martin M. Salinas and Tawnya T. Salinas (Condemnees) appeal the Order of the Court of Common Pleas of Clinton County dated October 24, 2002, denying their preliminary objections and authorizing the East Nittany Valley Joint Municipal Authority (Authority) to proceed with a Declaration of a Taking.

The trial court did not set forth the facts of this case in its opinion, but the notes of testimony of the hearing held before the Court of Common Pleas of Clinton County on September 26, 2002, reveal the following history.

On February 14, 2000, the Board of Supervisors of Lamar Township, Clinton County, Pennsylvania (Township), enacted Ordinance No. 2000-2, which required all owners of improved property located within the Township that was adjoining or adjacent to a new sewer system being acquired and constructed by the Authority, to connect to it upon notice by the Township.

Condemnees own real estate in a rural portion of Lamar Township (Transcript of Proceedings, October 23, 2002 (Tr.) 3-4), and their property was among those covered by this Ordinance. To comply with Sections 2.01 and 3.05 of the Ordinance,¹ Condemnees were to allow the Authority to bring a sewer lateral onto their property so that the terminus would be less than 150 feet from their dwelling, enabling them to connect to the Township's sewer system.² However they refused to permit the construction of a sewer lateral on their property, asserting that they maintain their own septic system and have experienced no problems with it, nor have they been notified that they were creating a health hazard for themselves, their neighbors, or the Township. (Tr. 13.) On April 20, 2002, the Township passed Resolution No. 2002-1, which authorized the condemnation of certain properties, of which Condemnees' was one, in order to allow for the construction, installation, operation, maintenance, repair and replacement of a public sewer system, and authorized the filing of a declaration of taking for the acquisition thereof. Consequently, on June 20, 2002, a declaration of taking was filed against Condemnees, to which they filed preliminary objections.³

In their preliminary objections, Condemnees asserted that their property was not in the original plan of the project and, thus, they were not afforded the opportunity to attend any public meetings and/or give their input when this project was in its initial stages. In fact, Condemnees stated that they were led to believe, by agents of the Authority, that they would not have to be part of the project. Condemnees also alleged that the project was excessive and beyond the scope of the original plan, to their severe economic detriment. They asserted that the Authority was taking more than public need reasonably requires. Condemnees also stated that the Authority did not pursue this condemnation in good faith; rather, they alleged that it was being undertaken as retribution for Condemnees' (or their attorney's) comments at a public meeting on June 3, 2002, and not for legitimate purposes. They claimed the Authority was attempting to stifle their constitutionally protected right of free speech and free expression of ideas. Further, Condemnees alleged that, because the project was not being pursued in accordance with sound engineering practices, the taking of their land was a gross abuse of discretion, which was both arbitrary and capricious, and inconsistent with the requirements of due process.

An evidentiary hearing was held on September 26, 2002, at which Mr. Salinas testified for Condemnees, and Stuart Sibold, an engineer with the EADS Group consulting on the project, testified for the Authority.⁴ (Tr. 18-19.) In his testimony, Mr. Salinas reiterated many of the allegations included in his preliminary objections, and discussed the "distance issue" in great detail. The gist of Mr. Sibold's testimony concerned the many factors his company "uncovered" which led to changes in Lamar Township's Act 537 plan. (Tr. 24-26.) He noted the potential difficulty of obtaining environmental permits from the Department of Environmental Protection and the Corps of Engineers under the old plan because of the sensitivity of the area due to the wetlands and archeological artifacts present. Id. He also noted the necessity, under the old plan, for "tremendously deep sewer excavations and a large amount of disturbance and just some very expensive construction." Id. Mr. Sibold further testified that the rural utility service, the government and the United States Department of Agriculture asked his firm to "save money everywhere we could . . . and . . . to consider the use of grinder pumps and pressure sewers instead of gravity sewers and pump stations. . . ." (Tr. 25.) He noted that a business park was proposed to be built in that section of Lamar Township, and he wanted to devise a way to accommodate the future collection of its sewage for transmission into the East Nittany Valley sewer system. (Tr. 25.) The trial judge, finding Mr. Sibold's evidence to be credible, issued an order on October 24, 2002, overruling Condemnees' preliminary objections. Condemnees appealed to this Court on November 25, 2002.⁵

Condemnees raise the following issues in their appeal: (1) the trial court erred in determining that the taking by the Condemnor was not excessive and beyond the scope of the original plan; (2) the Condemnees were misled by the Condemnors, whose agents told them at various times that they did not have to hook up to the sewer system; (3) the Condemnees' First Amendment rights were violated by the Condemnors, who stifled their questioning of the action and responded by filing this condemnation action; and (4) the trial court erred in failing to determine that, since the proposed hook-up to the sewer system was more than 200 feet from the main line of the sewer system, the proposal failed to abide by state law.

We note, as an initial matter, that a municipal corporation possesses only those powers granted in express words, and those necessarily or fairly implied or incident to those powers expressly granted. Golding v. New Britain Township, 382 A.2d 509, 511 (Pa. Cmwlth. 1978). Legislative actions taken pursuant to such grants of power are presumed to be valid. Herbert v. Commonwealth, 632 A.2d 1051, 1053 n.4 (Pa. Cmwlth. 1993).

Lamar Township is a second-class township and is subject to the powers and limitations of The Second Class Township Code (Code), Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§ 65101 — 68701. Section 2501 of the Code states that:

The board of supervisors may establish and construct sanitary sewer systems which shall if possible be constructed along and within the lines of the rights-of-way of public roads. If the board of supervisors determines that the systems shall be located on or through private property, the board of supervisors may acquire the land by gift, purchase or eminent domain. 53 P.S. § 67501 (emphasis added). Further, where it is determined necessary for the public health, second-class townships or their municipal authorities may, by ordinance and upon notice, require the owners of property benefited, improved, or accommodated by a sewer system to make uniform connections with it for the purpose of discharge of drainage or waste matter. Section 2502 of the Code, 53 P.S. § 67502. It was pursuant to this statutory authority that Lamar Township enacted Ordinance No. 2000-2. The Township's purpose for the condemnation of Condemnees' property, as stated in the Declaration of Taking, is consistent with the Code's authorization to construct sewers. See Matter of Chesapeake Estates Partnership, 701 A.2d 313, 317 (Pa. Cmwlth. 1997)("This court has held that the establishment and construction of a system of sewers and drainage under the Second Class Township Code is a proper public purpose for condemning private property"), petition for allowance of appeal denied, 555 Pa. 723, 724 A.2d 937 (1998).

As to Condemnees' specific issues on appeal to this Court, we believe that the trial court, in its order of October 24, 2002, succinctly and clearly explained its reasoning as to why it was denying Condemnees' preliminary objections to the eminent domain proceedings and the declaration of taking:

[W]e accept without hesitation the testimony of Stuart Sibold, the Authority Engineer, that the original design in the vicinity of Condemnees' property was legally modified by Lamar Township on February 14, 2002, because of various legal, environmental, and construction difficulties which arose with respect to the original plan. We totally reject any suggestion by Condemnees that the change in plan was for any inappropriate reason relating to Condemnees' personally.

With respect to Condemnees' argument that the taking exceeds that which is reasonably necessary, we again accept the testimony of Sibold that all property owners in the Mackeyville area are being treated similarly and that there are valid engineering and funding reasons for extending sewer lateral onto the properties of these and other Condemnees in order that those property owners be within the mandatory tap-on distances.

Finally, while the Authority may have been better advised to speak with a single voice during the design and negotiation process, we reject Condemnees' suggestion that they have been subjected to some fundamental unfairness by virtue of their various discussions with Authority representatives. While those Authority representatives may have been...