West Whiteland Associates v. Commonwealth

690 A.2d 1266, 1997 Pa. Commw. LEXIS 107
CourtCommonwealth Court of Pennsylvania
DecidedMarch 5, 1997
DocketNos. 3243 & 3370 C.D. 1995
StatusPublished
Cited by25 cases

This text of 690 A.2d 1266 (West Whiteland Associates v. Commonwealth) 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
West Whiteland Associates v. Commonwealth, 690 A.2d 1266, 1997 Pa. Commw. LEXIS 107 (Pa. Ct. App. 1997).

Opinion

NARICK, Senior Judge.

The central issue presented in this case is whether a condemnee in a taking case is required to raise by preliminary objection the unity of purpose doctrine set forth in Section 605 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-605. This issue is before us on cross-appeals filed by the Department of Transportation (DOT) and West Whiteland Associates (Condemnee) from the order of the Court of Common Pleas of Chester County that held Con-demnee had not waived the right to raise the unity of purpose doctrine by failing to file preliminary objections to DOT’s taking but would not rule preliminarily on whether the Condemnee had met its burden of showing that the property met the requirements of the unity of purpose doctrine. Based upon the following, we reverse and remand.

In June 1989, DOT filed a declaration of taking of property owned by Condemnee. DOT attached to the declaration of taking a schedule of property condemned. The plot plan and property plat showed unimproved property of 71.526 acres before condemnation, a taking of 23.866 acres, leaving a residue of 47.66 acres. Notice of condemnation and copies of the declaration of taking, schedules of property condemned, and the plot plan and property plat were served on Condemnee as required by Section 405 of the Code, 26 P.S. § 1-405. On June 5, 1989, Condemnee requested a copy of the title report for the condemned property which described the property of 71.6041 acres, but filed no preliminary objections to this declaration of taking. Estimated just compensation was established at $1,172,000.00. On March 13, 1990, Condemnee received DOT’s final payment.

Almost four years later, on February 24, 1994, Condemnee filed a petition for the appointment of a board of viewers. In this petition Condemnee requested additional compensation but did not allege or indicate that its property was other than the 71.526 acres shown on the plot plan and property plat filed with DOT’s declaration of taking.

At the board of viewers’ hearing, over DOT’s objections, Condemnee’s witnesses testified that Condemnee’s property before condemnation actually consisted of 179 acres based upon the unity of purpose doctrine. The additional acreage contained improvements which included several major buildings and a lithium processing plant operating under a long term lease. However, DOT’s expert witness testified solely on the appraisal value of the 71.526 acre property shown on the plot plan and plat filed with the declaration of taking. DOT argued that Condemnee waived any right to assert that the property consisted of more than 71.526 acres because Condemnee had not filed preliminary objections. The board rejected DOT’s argument and filed its report and award by considering a before condemnation property of 179 acres. The parties filed cross-appeals to the trial court.

Before the trial court DOT argued that Condemnee was required by Section 406 of [1268]*1268the Code, 26 P.S. § 1-406,1 to file preliminary objections if it was not satisfied with the total acreage DOT’s plot plan and property plat set forth in the declaration of taking. Condemnee asserted that it was entitled to be compensated for all its surrounding properties under the unity of use doctrine and that it was not required to file preliminary objections because Section 605 of the Code concerns solely the measure of damages. Condemnee claimed that such measure of damage is not a required preliminary objection under Section 406 of the Code.

Following the hearing, the trial court made two pertinent holdings. One, Condemnee had not waived the right to challenge the amount of land taken by DOT by not filing preliminary objections because such objection was not required by Section 406 of the Code and would only delay DOT’s right to possess the condemned property. Two, that although Condemnee’s property was non-contiguous, it must have the right to present evidence of the unity of purpose doctrine; however, it held that such evidence must demonstrate a unity of purpose at the time of the taking. However, the trial court declined to make a decision on the issue of the actual applicability of the unity of use doctrine.

Cross-appeals were again filed with this Court.2 DOT argues that the trial court erred in holding that Condemnee had not waived the right to challenge the description in the declaration of taking because it had not filed preliminary objections. DOT also argues that the trial court erred in holding that Condemnee could present evidence regarding the unified purpose doctrine at trial. Condemnee’s cross appeal argues that the trial court erred in failing to determine that the unity of use doctrine’s applicability preliminarily.

We begin with DOT’s argument that the trial court erred in ruling that Con-demnee had not waived the right to contest the description of the condemned property set forth in the plot plan and property plat by failing to file preliminary objections to the taking.

Preliminary objections under Section 406 of the Code are intended as a procedure to resolve expeditiously all legal and factual challenges to the declaration of taking before the parties move to the second distinct proceeding of qualifying damages. North Penn Water Authority v. A Certain Parcel of Land, 168 Pa.Cmwlth. 477, 650 A.2d 1197 (1994). Section 402 of the Code, 26 P.S. § 1-402, provides that a declaration of taking shall include a description of the property condemned as well as a reference to the place where the plans showing the condemned property are recorded and where such plans may be inspected. Section 405(c)(8) of the Code provides that the notice of condemnation served on the condemnee must include a “statement that the con-demnee’s property has been condemned and a reasonable identification thereof in the case of a total and, in the case of a partial taking, a plot plan showing the eondemnee’s entire property and the area taken.” 26 P.S. § 1-405(c)(8) (emphasis added).

DOT asserts that this case involves a partial taking and thus, as required by the Code, it filed and served on Condemnee a plot plan and property plat which showed that Con-demnee’s entire property before condemnation was 71.526 acres, the area taken was 23.866 acres and the after condemnation area was 47.66 acres. Condemnee did not file preliminary objections or in any other manner contest this description of the property set forth in the plot plan and property plat. Thus, DOT argues that any objections which could have been made. have been waived [1269]*1269because such an issue is so basic to the case that it must be decided at the earliest possible stage. We agree.

The plot plans and property plat filed with the declaration of taking and served upon a condemnee are part of and indeed, the heart of a declaration of taking. It is only by reference to such plans that one can determine what property is the subject of condemnation and, in the case of a partial taking, what part of a property has been taken. See Milford Tmumbauersville Area Sewer Authority v. Approximately 0.753 Acres of Land, 25 Pa.Cmwlth. 13, 358 A.2d 450 (1976) (description of property required by Code may be by attachment of plan).

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Bluebook (online)
690 A.2d 1266, 1997 Pa. Commw. LEXIS 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-whiteland-associates-v-commonwealth-pacommwct-1997.