McMaster v. Twp. of Bensalem

161 A.3d 1031

James M. MCMASTER and Mary Ellen McMaster, h/w, Appellants

v.The TOWNSHIP OF BENSALEM

No. 628 C.D. 2016

Commonwealth Court of Pennsylvania.

Argued: February 6, 2017

Filed: March 13, 2017

Reargument Denied April 25, 2017

Catherine A. Porter, Newtown, for appellants.

Ethan O'Shea, Lansdale, for appellee.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY SENIOR JUDGE COLINS

This matter is an appeal from an order of the Court of Common Pleas of Bucks County (trial court) sustaining preliminary objections to a petition for appointment of viewers. For the reasons set forth below, we affirm.

James M. McMaster and Mary Ellen McMaster (Property Owners) are the owners of 6001 Bensalem Boulevard, a residential property in Bensalem, Pennsylvania (the Property). The Property is approximately 6.25 acres in size and consists of three tax map parcels, 2–85–67, 2–55–857, and 2–85–103. (J. McMaster Dep. at 16–17, Reproduced Record (R.R.) at 152a–153a.) The Property is located on the east side of Bensalem Boulevard between Bensalem Boulevard and the Neshaminy Creek, which forms the eastern boundary of the Property. (Id. at 22–24, 37–38 & Dep. Exs. 2 & 3, R.R. at 158a–160a, 173a–174a, 259a–260a.) Husband Property Owner and his family have lived on the Property and used it continuously as a residence since 1986. (J. McMaster Dep. at 7, 35, 67, R.R. at 143a, 171a, 203a.) Property Owners' house is on tax map parcel 2–85–67, the largest of the three parcels. (Id. at 22–24, 29–31 & Dep. Exs. 2, 3 & 4, R.R. at 158a–160a, 165a–167a, 259a–261a.) Tax map parcel 2–55–857, on the northwest side of the Property, and the northern part of tax map parcel 2–85–67 are heavily wooded and cannot be developed without a variance because they are in a flood plain. (J. McMaster Dep. at 20–24, 26–27, 29–31, 107–08 & Dep. Exs. 2, 3 & 4, R.R. at 156a–160a, 162a–163a, 165a–167a, 243a–244a, 259a–261a.)

On August 31, 2006, Property Owners filed a petition for appointment of viewers, alleging that the Township of Bensalem (Township) in 1988 or 1989 constructed a storm water system that redirected storm water from the west side of Bensalem Boulevard onto a significant portion of the Property and asserting that this constituted a de facto taking of the Property.¹

Property Owners granted the Township an open-ended extension of time to respond and the case lay dormant until 2014. In 2010, while the case was inactive, the Township installed underground piping through the Property to carry the water discharged from the west side of Bensalem Boulevard to the Neshaminy Creek. (Amended Petition for Appointment of Viewers ¶¶ 9, 25, R.R. at 81a, 83a; J. McMaster Dep. at 83–86, 92–101, R.R. at 219a–222a, 228a–237a.) In March 2014, the Township filed preliminary objections to the petition for appointment of viewers. On April 15, 2014, Property Owners filed an amended petition for appointment of viewers, in which they alleged both that the redirection of storm water that began in 1988 or 1989 was a de facto taking and that the 2010 pipe installation was a de facto or de jure taking. On May 5, 2014, the Township filed preliminary objections to the amended petition for appointment of viewers.

Discovery was taken on the preliminary objections. Husband Property Owner testified in his deposition that in the spring of 1989, he noticed that the area north of his house and lawn "was flooded with several feet of water" and that this flooding occurred again within a week or two. (J. McMaster Dep. at 59–60, R.R. at 195a–196a.) Until the pipe installation in 2010, this flooding continued to occur whenever there were heavy rains or thunderstorms and the water would remain on the northern part of the Property for days or weeks. (Id. at 63–65, R.R. at 199a–201a.) There was no noticeable flooding after light rainfall. (Id. at 63–64, R.R. at 199a–200a.) Husband Property Owner testified that in 1990 the Township told him that the water came from a pipe that the Township installed in 1988 to solve a drainage problem on west side of Bensalem Boulevard. (Id. at 39–46, R.R. at 175a–182a.) The Township had thought that the pipe into which its new storm water pipe discharged ran along Bensalem Boulevard to a pipe that discharged into the Neshaminy Creek, but the pipe into which the Township redirected the storm water in fact discharged on the Property. (Id. at 43–46, R.R. at 179a–182a.) Husband Property Owner admitted that the Township's 2010 pipe installation solved the flooding caused by the Township's redirection of storm water. (Id. at 101–102, R.R. at 237a–238a.) The Property experiences flooding approximately once a year from the Neshaminy Creek unrelated to the flooding caused by the Township's redirection of storm water. (Id. at 87–88, R.R. at 223a–224a.)

All of the flooding from the redirection of storm water was on the wooded northern part of the Property, tax map parcel 2–55–857 and the northern part of tax map parcel 2–85–67, and Property Owners' house was not affected. (J. McMaster Dep. at 27–28, 60–61, 67–68, R.R. at 163a–164a, 196a–197a, 203a–204a.) The water occasionally came onto the edge of the grass 80 to 100 feet north of the house, but did not significantly affect Property Owners' lawn or their ability to use their lawn. (Id. at 28, 60–61, 70–71, R.R. at 164a, 196a–197a, 206a–207a.) Husband Property Owner testified that the flooded area included an area north of the lawn where he had cleared away underbrush and that he had occasionally used that cleared area for some activities, such as a horseshoes set-up for a picnic, minibike riding by one of his children, and a tree fort for his children.

(Id. at 27–28, 60–61, 71–72, R.R. at 163a–164a, 196a–197a, 207a–208a.) Husband Property Owner did not view the cleared area as part of the lawn; after it was cleared, it remained weed-covered. (Id. at 60–61, R.R. at 196a–197a.) Other than letting the children play in the woods, Property Owners did not use the uncleared wooded area of the Property, but at one time had considered putting a basketball court area on part of wooded area near Bensalem Boulevard. (Id. at 72–73, R.R. at 208a–209a.) Husband Property Owner testified that the flooding from the Township's redirection of storm water caused the loss of five large trees in the wooded area of the Property, which he estimated contains dozens and possibly over a hundred trees, most of which are small. (Id. at 103–106, R.R. at 239a–242a.)

Neither party requested a hearing on the Township's preliminary objections, and the trial court² ruled on the preliminary objections based on the deposition of Husband Property Owner and accompanying exhibits without a hearing. On March 25, 2016, following briefing and oral argument, the trial court issued an order sustaining the Township's preliminary objections to Property Owners' claim with respect to the redirection of storm water onto the Property, concluding that the storm water redirection did not constitute a de facto taking because the flooding did not substantially deprive Property Owners of the use and enjoyment of the Property. The trial court, however, held that the 2010 pipe installation was a de facto taking, overruled the Township's preliminary objections with respect to that claim, and appointed a board of viewers to determine the amount by which the value of the Property was diminished by the 2010 pipe installation. Property Owners appealed to this Court the trial court's sustaining of the Township's preliminary objections to their storm water redirection claim. The Township did not appeal the overruling of its preliminary objections as to the 2010 taking claim. Because the overruling of preliminary objections to a petition for appointment of a board of viewers is immediately appealable under Pa. R.A.P. 311(e), the trial court's ruling that the 2010 pipe installation was a de facto taking and Property Owners' right to appointment of viewers with respect to that claim cannot be further challenged by the Township. See Pa. R.A.P. 311(g)(1)(iii) (failure to appeal the overruling of preliminary objections in an eminent domain case waives the right to challenge that ruling in a subsequent appeal from a determination of the merits).

Property Owners argue that the trial court erred in rejecting their contention that the redirection of storm water onto the Property was a de facto taking under the Eminent Domain Code and in failing to hold that they are entitled to consequential damages for that flooding under the Eminent Domain Code.³ Because Property Owners' claims with respect to the redirection of storm water onto the Property arose in the 1980s when the redirection occurred and the flooding began, they are governed by the former Eminent Domain Code, the Act of June 22, 1964, Special Sess., P.L. 84, as amended , formerly 26 P.S. §§ 1–101 –1–903, repealed by Section 5(2) of the Act of May 4, 2006, P.L. 112, not the current Eminent Domain Code, 26 Pa. C.S. §§ 101 –1106. Although repealed, the former Eminent Domain Code applies to takings prior to September 1, 2006 because the current Eminent Domain Code, with an exception not applicable here, applies only to condemnations occurring on or after its effective date. Colombari v. Port Authority of Allegheny County , 951 A.2d 409, 411 n.1 (Pa. Cmwlth. 2008) ; see also Act of May 4, 2006, P.L. 112, §§ 6(1), (2), 7. As is discussed below, however, there is no difference between the former Eminent Domain Code and the current Eminent Domain Code on the issues in this appeal of de facto taking and consequential damages.

The questions before this Court are not whether the Property Owners were damaged by the Township's redirection of storm water and whether they may recover from the Township, but whether the harm to the Property constitutes a de facto taking and whether damages are recoverable in an eminent domain proceeding. If government injury to property...