In re Proceeding By Columbia Cnty. for the Condemnation of Prop. of G.M. Hock Penn, LLC

In the Matter of Proceeding by Columbia County for the

Condemnation of Property of G.M. Hock Penn, LLC

Appeal of: G.M. Hock Penn, LLC

No. 1681 C.D. 2011

COMMONWEALTH COURT OF PENNSYLVANIA

Argued: March 15, 2012

April 27, 2012

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE SIMPSON

In this eminent domain appeal, G.M. Hock Penn, LLC (Owner) asks whether the Court of Common Pleas of the Twenty-Sixth Judicial District, Columbia County Branch (trial court) erred in overruling its preliminary objections to a declaration of taking filed by Columbia County (County) to obtain possession of an underground easement along its property for the installation and maintenance of a water main. Owner contends the trial court erred in determining County is authorized to exercise eminent domain for this purpose, and that the taking is for private use. Discerning no error, we affirm.

I. Background

Columbia County Industrial Development Authority (Authority), a municipal authority, and Alliance for Economic Growth (Alliance), a non-profit entity, entered into a joint venture agreement to develop land adjacent to Owner's property (Development Parcel) as an industrial park. In order to facilitate the delivery of water resources to the Development Parcel, County filed a declaration of taking to acquire an underground easement along Owner's property to install a water main. The proposed water main would connect the Development Parcel to a preexisting water line system operated by a privately owned public utility company. Owner filed preliminary objections, claiming County lacked statutory authority for the taking, and that the taking was an improper condemnation of property for the benefit of private enterprise.

Upon consideration, the trial court overruled Owner's preliminary objections. The trial court determined Section 1999c of the County Code (County Code) (appropriations for water resources)¹ expressly authorized County to acquire property by eminent domain for the site of a facility for the utilization of water resources, such as a water main. Furthermore, the trial court concluded the installation of a water main was for public benefit and use. Owner appeals.²

II. Issues

Owner contends the trial court erred in determining Section 1999c of the County Code vests County with the authority to take private property by eminent domain for the installation and maintenance of a water main. Additionally, Owner argues County's taking is for private use and not public benefit, and, as such, is unconstitutional and in violation of Section 204 of the Property Rights Protection Act (PRPA), 26 Pa. C.S. §204.³

III. Discussion

A. Statutory Authorization

We first consider Owner's assertion that County lacks statutory authorization to condemn private property for the installation of a water main where the owner of the source (i.e., the dam, reservoir, well or facility) of the water to be transported is a private entity. In response, County contends water mains fall within the undefined term "facilities" in Section 1999c of the County Code, which grants it authority to use eminent domain to acquire property for the sites of the facilities necessary to utilize its water resources. Thus, the determinative question is whether the term "facilities" in Section 1999c of the County Code encompasses water mains.

Section 1999c of the County Code states, in pertinent part:

(a) The board of commissioners may borrow, appropriate and expend money for the construction, acquisition by purchase, lease or otherwise, operation and maintenance of dams, reservoirs, wells and other facilities for the utilization of surface, subsurface, and ground water resources and all related structures, appurtenances and equipment necessary for the use of said dams, reservoirs, wells and other facilities, and may acquire by purchase, lease, gift, or exercise of eminent domain, sites for the same: Provided...

* * *

(c) The board of commissioners may enter into contracts or long range cooperative programs with State, Federal, interstate and local government agencies or public utilities for the development and use of the county's water resources.

16 P.S. §1999c (emphasis added).

When interpreting a statute granting eminent domain authority, that grant of authority must be strictly construed as it is necessarily in derogation of private property rights. Middletown Twp. v. Lands of Stone, 595 Pa. 607, 939 A.2d 331 (2007). As such, a municipality may exercise eminent domain only where that power is expressly conferred by statute. Bear Creek Twp. v. Riebel, ___ A.3d ___ (Pa. Cmwlth., No. 72 C.D. 2011, filed February 13, 2012). However, such strict construction does not require construing a statute as narrow as possible, or construing it so literally that its obvious intent is frustrated. Pitts. Sch. Dist. Condemnation Case, 430 Pa. 566, 244 A.2d 42 (1968).

Where the words in a statute are free from ambiguity, the letter of the statute may not be disregarded. Gardner v. Workers' Comp. Appeal Bd. (GenesisHealth Ventures), 585 Pa. 366, 888 A.2d 758 (2005) (citing 1 Pa. C.S. §1921). In interpreting a statue's undefined terms, a court should construe the terms in a sensible manner, utilize the rules of grammar, and apply the terms' common and approved usage and meaning. Kirsch v. Pub. Sch. Emp. Ret. Bd., 929 A.2d 663 (Pa. Cmwlth. 2007); P.R. v. Dep't of Pub. Welfare, 759 A.2d 434 (Pa. Cmwlth. 2000) (en banc) (a court may consult definitions in statutes and dictionaries for guidance where helpful).

Here, the County Code is silent as to the meaning of the term "facilities." Therefore, we consider the term's common and approved usage. See Diocese of Altoona-Johnstown v. Zoning Hearing Bd. of the Borough of State Coll., 899 A.2d 399 (Pa. Cmwlth. 2006). The term "facility" is commonly defined as: "something ([such] as a hospital, machinery, plumbing) that is built, constructed, installed, or established to perform some particular function or to serve or facilitate some particular end." Webster's Third New International Dictionary, 812-813 (2002). It is beyond dispute that water mains are built and installed as part of the infrastructure that allows public access to water resources, particularly, as part of a public utility system. Therefore, a water main falls within the common usage of the term "facilities" as it is used in Section 1999c of the County Code.

Additionally, reading Section 1999c of the County Code as a whole, it is evident the General Assembly foresaw the need for counties to cooperate with public utilities, including private companies regulated as public utilities. Therefore, not only did the General Assembly grant County authority to exerciseeminent domain power in subsection (a), but it further endorsed using such authority in cooperation with public utility companies, as proposed here, in subsection (c) of Section 1999c of the County Code. Thus, in light of the common meaning of the term facility, and the cooperation expected between counties and public utility companies, County has the authority to exercise eminent domain to acquire an easement as a site for a water main, regardless of whether it is connected to a publicly or privately owned water line.

Furthermore, we reject Owner's ancillary argument that the term "sites" in some way limits County's power to acquire a right-of-way, or as here, an underground easement, rather than a larger estate in land. See Ephrata Area Sch. Dist. v. County of Lancaster, 595 Pa. 111, 938 A.2d 264 (2007) (an easement is a property interest which may be subject to eminent domain); Twp. of Cornplanter v. McGregor, 745 A.2d 725 (Pa. Cmwlth. 2000) (the taking of an easement is appropriate where a larger interest in not necessary). Accordingly, we discern no error in the trial court's conclusion that County has the statutory authority to exercise eminent domain as stated in its declaration of taking.

B. Public Use

Next, we consider whether County's desired exercise of eminent domain power is for public use. Specifically, Owner argues the condemnation is for the benefit of private enterprise as it will only serve the future property owners of the Development Parcel. Furthermore, Owner contends the taking benefits private enterprise because Alliance, as the developer, will ultimately profit from the benefits of the taking.

Despite having statutory authority to act, a municipality may only exercise eminent domain to condemn property for public use. PA. CONST. Art. I, §10; In re Bruce Ave., 438 Pa. 498, 266 A.2d 96 (1970). Our Supreme Court equates "public use" with "public purpose." Lands of Stone. A proper public purpose exists only where the public is the primary and paramount beneficiary of the taking. Id.; Bear Creek Twp. Additionally, the Eminent Domain Code, as amended by the PRPA, expressly prohibits, subject to several exceptions, the taking of one's private property for the private enterprise of another. 26 Pa. C.S. §204. In light of these prohibitions, an objector nonetheless has a heavy burden to show the taking is for a private use and not public benefit. In re Bruce Ave.

Here, the trial court did not err in determining the public is the primary beneficiary of County's exercise of eminent domain. County is not transferring title from one private entity to another, but is taking property from Owner to hold publicly for the purpose of facilitating the distribution of water resources within the municipality. See In re Proceeding by the Twp. of E. Hanover, 701 A.2d 313 (Pa. Cmwlth. 1997) (taking to construct public sewer and water drainage system constitutes public purpose). Clearly, there is a public benefit in County maintaining an effective and comprehensive water infrastructure. See Valley Rural Elec. Coop., Inc. v. Shanholtzer, 982 A.2d 566 (Pa. Cmwlth 2009) (extending electric services to the unserviced area); In re Opening a Private...