In re Condemnation by Newtown Twp. Del. Cnty.

In re: Condemnation by Newtown Township Delaware County, Municipal Authority, of a Permanent Easement Across the Property located at 4700 W. Chester Pike, Newtown Township, Delaware County, PA Folio Number: 30-00-02906-01 Tax Map Number: 30-34-001-00 Dorothy Rafferty, Condemnee Newtown Township, Delaware County, Municipal Authority, Condemnor Appeal of: Dorothy Rafferty

No. 752 C.D. 2022

Commonwealth Court of Pennsylvania

December 28, 2022

OPINION NOT REPORTED

Argued: November 14, 2022

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE ELLEN CEISLER, Judge (P.) HONORABLE STACY WALLACE, Judge

MEMORANDUM OPINION

MICHAEL H. WOJCIK, Judge

Dorothy Rafferty (Condemnee) appeals the May 18, 2022 opinion and order of the Delaware County Court of Common Pleas (trial court) making findings of fact and conclusions of law overruling each of Condemnee's preliminary objections to the Declaration of Taking filed by the Newtown Township (Township), Delaware County (County), Municipal Authority (Authority) condemning an easement over a portion of Condemnee's five-acre property pursuant to the Eminent Domain Code (Code), 26 Pa. C.S §§101-1106.^[1] We affirm.

I.

The trial court's findings of fact and the facts of record may be summarized as follows. In 2012, the Authority initiated a project known as the Upper Crum Creek Watershed Project (Project) to expand the then-existing sanitary sewer system for the Township, including many homes that had failing onsite sewage systems. The Project implements the Authority's plan under the Pennsylvania Sewage Facilities Act^[2] (Act 537 Plan) including borrowing funds and obtaining access to, and the use of, property to implement the Project. Specifically, the Project involved the Authority securing access easements for the placement of underground sanitary sewers and a means by which utilities may service pump stations including a station on property adjacent to Condemnee's property that is owned by Newtown Village LLC (Newtown Village Property). The Project's completion will enable approximately 200 Township households and businesses to connect to a public sewer. The pump station on the Newtown Village Property is currently inoperative because an easement to construct an access road to reach the station is required.

On August 6, 2018, the Authority approved a resolution (2018 Resolution) authorizing the Authority to file a Declaration of Taking regarding properties in connection with the Project.^[3] In November 2018, the Authority borrowed approximately $33.5 million dollars to support the Project. The Authority also obtained all of the necessary permits for the Project, bid the Project, and executed a number of contracts to start construction.

After completing these steps, between November 2018 and June 2020, the Authority reviewed its original plans to construct the access road and considered making changes based on a request from the owner of the Newtown Village Property. It evaluated several different alternatives for the location of the access road, including placing it over a small portion of Condemnee's five-acre property at 4700 West Chester Pike, Newtown Township, on which Rafferty Subaru is located. After considering its options for over a year, the Authority ultimately chose an amended plan that did not change the ultimate location of the pump station on the Newtown Village Property, which still needed to be accessed for servicing in connection with the Project. However, the amended plan required a 20-foot wide and 165-foot long permanent easement over an undeveloped corner of Condemnee's property located behind a retaining wall that she had previously constructed, and then running along the rear portion of her property behind the retaining wall. The Authority attempted to negotiate an easement with Condemnee, through her son and her attorneys acting on her behalf, but the negotiations proved unsuccessful.

Accordingly, on September 8, 2020, the Authority approved a resolution (2020 Resolution) amending the 2018 Resolution that added an additional property to the set of real properties to be taken that were necessary for the Project including the portion of Condemnee's property. As part of the 2020 Resolution, the Authority ratified and confirmed not only all of the terms and conditions of the 2018 Resolution, but also the terms and conditions of the open-ended bond without security for the Project.

On September 15, 2020, the Authority filed a Declaration of Taking in the trial court seeking to condemn a permanent easement over the small undeveloped portion of Condemnee's property. On October 16, 2020, the Authority provided Condemnee with a letter offering just compensation totaling $8,750 for the permanent easement on her property.

The Authority maintains readily accessible funds to pay for any expenses related to the Project, including the estimated just compensation offer to Condemnee or any award to Condemnee from a Board of View. These funds include an uncommitted $325,000 balance from the remaining $825,000 bond fund, from the $33.5 million that the Authority initially borrowed for the Project, and Authority-generated revenue from various fees. The Authority's 2019 and 2020 financial statements show cash and cash equivalents of $17 to $24 million and incoming rents and fees of approximately $5 million. The Authority anticipates receiving approximately $2 million from new tapping fees once the pump station on the Newtown Village Property planned by the Project and serviced by the access road becomes operational.

On October 16, 2020, Condemnee filed preliminary objections to the Declaration of Taking challenging the condemnation on four bases: (1) the Declaration of Taking is untimely under Section 302(e) of the Code^[4]; (2) the taking is excessive and an abuse of discretion; (3) the Authority has not provided a sufficiently specific description of the property condemned as required by Section 302(b) of the Code^[5]; and (4) the bond in connection with the taking is insufficient under Section 303 of the Code.^[6] Prior to hearing on the objections, Condemnee sought to compel the Authority to engage in discovery under the Pennsylvania Rules of Civil Procedure. On April 8, 2021, the Authority filed a Motion for Protective Order to limit the discovery to only documents relating to the preliminary objections. See Reproduced Record (RR) at 173a-209a. The next day, the Authority filed a Motion in Limine identifying the evidence that the Authority sought to introduce at the hearing and sought an order from the court precluding Condemnee from offering any additional evidence. See id. at 215a-222a. Condemnee filed responses in opposition to both of the Authority's motions. See id. at 223a-233a. On July 15, 2021, the trial court issued orders granting in part, and denying in part, the Authority's motions. See id. at 234a-240a.

On August 2, 2021, the Authority and Condemnee filed their witness lists with the court. On November 15, 2021, the Authority filed another Motion in Limine in the trial court objecting, inter alia, to the proposed testimony of Claude DeBotton, the principal for Newtown Village LLC. See RR at 263a-64a. As recounted by the Authority, Condemnee sought to introduce his testimony regarding the plan for the access road in the prior condemnation plan and why the Authority proposed moving the road onto Condemnee's property. See id. at 263a.

On November 30, 2021, without a response from Condemnee,^[7] the trial court granted in part, and denied in part, the Authority's motion. See id. at 302a-10a. Specifically, the trial court struck DeBotton from Condemnee's witness list and excluded his testimony from the hearing. Id. at 309a.^[8] On December 3, 2021, the trial court denied Condemnee's motion for reconsideration. Id. at 921a-24a.

On December 6, 2021, the trial court conducted a hearing on Condemnee's preliminary objections. See RR at 320a-621a. Both Condemnee and Condemnor presented testimony and exhibits in support of their respective positions. See id. On May 18, 2022, the trial court issued the instant opinion and order making findings of fact and conclusions of law overruling each of Condemnee's preliminary objections to the Declaration of Taking filed by the Authority. Condemnee then filed the instant appeal of the trial court's opinion and order.^[9]

II.

On appeal, Condemnee first claims that the trial court erred in finding that the taking was not excessive or an abuse of discretion.^[10] She claims that the Authority abused its discretion because it did not adequately prepare for the taking by failing to procure the necessary permits, approvals, or studies before filing the Declaration of Taking. She asserts that the Authority also abused its discretion by acquiescing to the demands of a single landowner, DeBotton, in changing the location of the access road for future development of his property. In addition, Condemnee contends that she would have been able to prove this claim if the trial court had not granted the Authority's Motion in Limine with respect to this testimony. Relatedly, Condemnee claims that the taking was excessive because the Authority already possessed the property necessary to construct the access road as originally planned on DeBotton's property.

However, in rejecting Condemnee's former assertion, the trial court stated:

[]Condemnee's suggestion that the [Authority] did not prepare for the takings in connection with the Project, including but not limited to the taking of [Condemnee's p]roperty, borders on the absurd. The evidence at the December 6 Hearing includes abundant proof of not only the planning process for the Project, but also the extensive, multi-year long efforts the [Authority] undertook to implement the Project,

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