In re Condemnation by the Pennsylvania Turnpike Commission of 14.38 Acres in Fee Simple

680 A.2d 19
CourtCommonwealth Court of Pennsylvania
DecidedJuly 1, 1996
StatusPublished

This text of 680 A.2d 19 (In re Condemnation by the Pennsylvania Turnpike Commission of 14.38 Acres in Fee Simple) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Condemnation by the Pennsylvania Turnpike Commission of 14.38 Acres in Fee Simple, 680 A.2d 19 (Pa. Ct. App. 1996).

Opinions

FRIEDMAN, Judge.

James C. Bright, Virginia Bright and Douglas McKibben (collectively, Con-demnees), owners and lessee of a parcel of land which was condemned and taken by the Pennsylvania Turnpike Commission (Commission), appeal from that part of an order of the Court of Common Pleas of Lawrence County (trial court) denying Condemnees’ request for damages under the Assembled Economic Unit Doctrine, holding that the doctrine was not applicable in determining the amount of damages from the taking. The Commission, in turn, appeals from that part of the trial court’s order holding that the Condemnees are severally entitled, as owners and lessee of the property, to damages pursuant to section 610 of the Pennsylvania Eminent Domain Code (Code).1

The Brights own a 49 acre property (Bright farm), which they lease to McKibben, who, since 1986, has used the property to operate a small dairy farm. To use the property for this purpose, McKibben had to make extensive renovations to the existing barn, which had previously been used for non-dairy purposes. At this time, Con-demnees were also leasing a comparably-sized nearby property (Benson farm) on which they kept cows which were not currently producing milk or were pregnant, (Board of Viewers’ Findings of Fact, 68 & 72; R.R. at 33-34a),2 and were also leasing a 40+ acre parcel known as the Gilmore farm, which is located a few miles past the Benson farm and used for growing hay for the cattle, (Board of Viewers’ Finding of Fact, No. 70).

On November 29, 1989, pursuant to the Code,3 the Commission filed a Declaration of Taking which condemned 14.38 acres of the property including the renovated dairy barn and the adjacent pole barn for a new road; the new road also blocked access to Edwards Run, a stream on the property which had been used to water the cattle. After the taking, Condemnees felt that the decreased size of the property prevented them from operating a dairy farm due to the space required for legal, practical and financial reasons. (Board of Viewers’ Finding of Fact, No. 67.) Condemnees sought damages for the loss and argued before the Board of Viewers (Board) that they are entitled to damages under the Assembled Economic Unit Doctrine.4

[21]*21At hearings before the Board to determine whether Condemnees were entitled to damages for the taking, Condemnees presented the testimony of MeKibben, James Bright, Francis Newell, an expert appraiser, and Richard English, an expert real estate appraiser.

MeKibben described the dairy barn, which was used for milking and feeding the cows. According to MeKibben, the lower level of the custom built barn contained concrete stalls, beds, feed bunks and tie stalls where the cows could be individually tied and taken care of with their own water and feed spaces. (R.R. at 13a.) All of the necessary construction was performed by MeKibben himself.5 MeKibben also testified that, after receiving notice that he had to vacate the barn within thirty days, he was forced to chemically dry up his cows to stop milk production and, eventually, because he could not move his operation to another suitable site, sold them at auction in 1990 at an estimated loss of $18,876.05. (Board’s Findings of Fact, Nos. 21 and 23-24; R.R. at 32-37a.) MeKibben testified that there were no other appropriate properties for sale in the area to which he could have moved the dairy farm, (R.R. at 373a), because, in addition to requiring a dairy barn and sufficient acreage to run a successful dairy farm, an on-premises residence is necessary so that the operator can be nearby for calving and the twice-daily milking. (R.R. at 375-77a.) MeKibben felt that the Benson farm was an inappropriate property on which to relocate the business because there was no house on the property and the cost of renovating it into a dairy farm was prohibitive. (R.R. at 378a.)

McKibben’s grandfather, James Bright, testified that they could not operate a dairy farm on the remaining property due to the decreased size, loss of access to the stream and, primarily, loss of the dairy barn, and that there were no similar available properties to which they could have moved. (R.R. at 254-56a and 304a.) Bright testified that the Benson farm was not appropriate because there was no milking barn, only an open free stall barn,6 (R.R. at 297a); the Gilmore farm did not even have a barn and was used only for growing crops, (R.R. at 302-03a).

Newell, the expert appraiser, testified to the value of the machinery and equipment contained in the condemned barn, which he estimated to be $111,821.00. (R.R. at 74a.) On cross-examination, however, Newell admitted to not having many of his notes and calculations with him and that he was unaware of exactly how old certain pieces of equipment were and whether they had been purchased new or used. On re-direct examination, Newell explained that such information is not necessarily relevant for appraising the value of an item.

English, the expert real estate appraiser, testified that the best use of the condemned property would have been the continued use of it as an operating dairy farm, (R.R. at 164a), and that he had been unable to locate any available dairy farm to which Con-demnees could have transferred the operation, although he did find three comparably sized non-dairy farms which he considered to be inappropriate for Condemnees’ needs. (R.R. at 166a, 173a, 189-92a, 246-47a.) English testified further that the Condemnees could not have continued the dairy farm on the reduced acreage due to the need for [22]*22minimum acreage needed per cow,7 (R.R. at 170a), and that the loss of access to the stream affected the operation of the farm, (R.R. at 174a). In his appraisal, English treated the Bright farm as an Assembled Economic Unit. (R.R. at 174a.)

In opposition to Condemnees’ claim, the Commission presented the testimony of Francis Chiapetta, an expert real estate appraiser. While Chiapetta agreed that the best use of the property is as a small farm, he disagreed that the building was unique for purposes of the Assembled Economic Unit Doctrine and that the dairy operation was incapable of being relocated. (R.R. at 388a.) In fact, Chiapetta believed that there were suitable properties available to Condemnees, even though he was not aware of any currently functioning as dairy farms. (R.R. at 388-96a, 402a.) On cross-examination, Chia-petta stated that, in his opinion, any structure could be adapted to function as a dairy barn.8 (R.R. at 401a.) On re-direct, Chia-petta explained that he believed the other properties could be adapted to be dairy barns because the condemned dairy barn had been so adapted and that, contrary to Con-demnees’ assertions, there is no necessity for housing upon a dairy farm. (R.R. at 419a.)

Based upon the evidence presented at the hearing, the Board concluded that Con-demnees failed to prove that the portion of their dairy farm that was condemned was so unique that a comparable facility was not available or adaptable within a reasonable distance from their farm. (Board’s Conclusion of Law, No. 1.) Specifically, the Board noted that the condemned barn itself had been adapted for dairy farming and that Condemnees also had use of the nearby Benson and Gilmore farms which could have been used for the dairy farm. (Board’s Conclusion of Law, No.

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Bluebook (online)
680 A.2d 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-condemnation-by-the-pennsylvania-turnpike-commission-of-1438-acres-pacommwct-1996.