In a condemnation case, the Pennsylvania Commonwealth Court has rejected a property owner’s challenge to a PennDOT’s taking of three parcels for a road-widening project, rejecting a claim that the agency’s investigation fell short of its duties under the law.

Background

In Commonwealth of Pennsylvania, Department of Transportation v. Bennett Family Properties LLC, BFP had appealed from the trial court’s order overruling BFP’s preliminary objections to PennDOT’s declaration of taking. BFP presented two issues for the Court’s review:

• whether the trial court erred and abused its discretion by prohibiting testimony supporting BFP’s claims that PennDOT failed to conduct a suitable investigation and reach an intelligent, informed decision before it filed the Declaration
• whether the trial court incorrectly interpreted PennDOT’s duties under the Eminent Domain Code and case law, where uncontroverted evidence supports the trial court’s assertion that PennDOT failed to satisfy those duties

PennDOT filed the Declaration with respect to three undeveloped BFP-owned real estate parcels located adjacent to State Route 443 in Mahoning Township. PennDOT claimed the taking of the parcels was necessary for a road widening project. BFP filed the preliminary objections, asserting that PennDOT abused its discretion in failing to undertake a suitable investigation and/or make an intelligent, informed judgment regarding the taking, and PennDOT’s appropriation of the BFP’s property was an excessive taking.

The trial court held a hearing on BFP’s preliminary objections. BFP presented the testimony of Joseph J. Bennett, a BFP principal, and Gregory Haas, a licensed professional engineer.

Bennett testified that BFP purchased the BFP property intending to develop it for commercial use. Bennett explained that he had communications with a fast food corporation’s representatives regarding developing the BFP property as a fast food restaurant. Bennett further reported that he learned PennDOT was considering taking the BFP property for stormwater retention basins (basins/retention ponds). Bennett stated that, after acquiring this information, he and his engineer met with PennDOT representatives regarding his development plans and suggested that the proposed basins would be better located on an adjacent property off of Route 443.

Haas testified that, after examining PennDOT’s plans, he concluded that the BFP property need not be taken, since the proposed basins could be placed on property located behind and north of the BFP property. On cross-examination, (a) acknowledged that the purpose of the basins would be to mimic the natural drainage runoff but for the development, and (b) admitted that his firm had not done any testing on the other properties to see if they were suitable for the basins. He did not know whether PennDOT’s proposed basins would mimic the drainage but for the improvements, and admitted that to relocate the basins to the other properties, PennDOT would need to install piping from State Route 443 to the infiltration basin, a considerable distance farther away, and then install additional piping from the other properties to Mahoning Creek, thereby affecting five private properties. Haas acknowledged that PennDOT would be required to maintain and/or obtain rights-of way over the five properties and that he did not perform a cost analysis regarding any aspect of his proposal.

The crux of BFP’s argument was that PennDOT did not give adequate consideration to BFP’s alternate proposal and, therefore, PennDOT did not conduct a suitable investigation leading to an intelligent and informed decision.

PennDOT’s witnesses testified that they did consider Bennett’s alternative proposal and even visited the BFP property with Bennett and his engineers.

In response, the Commonwealth Court found, after reviewing applicable case law, that (a) there is no requirement that a condemnor conduct a suitable investigation specific to an alternative condemnee-requested proposal, and (b) the requirement that a condemnor conduct a suitable investigation applies to the project itself.

The Court further found that:

• condemnor’s plan must be for a “proper purpose” and “evidence of a well-developed plan of proper scope is significant proof that an authorized purpose truly motivates a taking.”
• condemnor “ is not required to follow any set criteria in choosing a . . . site”.
• all that is required is that an investigation be conducted so that the decision to condemn is an informed judgment.

The Commonwealth Court held that the trial court properly applied the law and concluded that PennDOT had conducted a suitable investigation and reached an intelligent, informed judgment; and affirmed the trial court’s order.

For further information about this case or the process to contest a PennDOT taking or negotiate a settlement related thereto, please contact RGundlach@FoxRothschild.com. Rob represents both condemnors and condemnees with condemnation cases in Pennsylvania and is the Co-Chair of the Real Estate Department at Fox Rothschild, LLC.