555 A.2d 966 | Pa. Commw. Ct. | 1989
Opinion by
John E. Sandin, William K. Hamburg and Elizabeth Willison, formerly Elizabeth Baun, (Appellants) appeal an order of the Allegheny County Court of Common Pleas sustaining the appeal of the Pennsylvania Department of Transportation (DOT) and vacating a report of a board of viewers.
This matter involves DOT’s condemnation for transportation purposes, of two contiguous tracts of vacant residential property in Ohio Township, Allegheny County. On October 30, 1985, DOT filed a declaration of
Another declaration of taking was filed against part of an approximately 96 acre tract. This tract and the Rosinski tract are contiguous. At the time of condemnation, the record owners were John E. Sandin and William K. Hamburg t/d/b/a Avonworth Farms. In 1977, John E. Sandin, Clinton Baun, William Hamburg and Harold M. Weston purchased the parcel from a Mrs. Nock and it will be referred to as the Nock tract. Weston’s and Baun’s interests were later transferred to Avonworth Farms.
Sandin, Hamburg, and Willison are joint venturers on a project to develop the parcels as a planned unit development.
On January 13, 1986, Appellants filed a petition for appointment of a board of viewers claiming the two parcels form an “integrated use”. A board of viewers was appointed and after a hearing, issued its report. In its report, the Board applied the “integrated use” doctrine. It then valued both parcels as one entity, awarding Appellants $320,000.00. DOT appealed, claiming the board erred in treating the two tracts as one for damages purposes. Appellants also appealed the amount of the board’s
The trial court disposed of the matter prior to trial pursuant to Section 517 of the Eminent Domain Code
The trial court held that neither the “unity of use” nor the “integrated use” doctrines applied, vacated the decision of the board of viewers and remanded, ordering the viewers to value each tract separately. This appeal followed.
The “unity of use” doctrine applies only to non-contiguous tracts which are so interconnected in the use to which they are applied, that the injury to one will permanently damage the other. Werner v. Department of Highways, 432 Pa. 280, 247 A.2d 444 (1968); Elgart v. Philadelphia, 395 Pa. 343, 149 A.2d 641 (1959).
The doctrine of “integrated use” has been applied where the interest of a person in condemned property is less than a fee interest and where that person also owns an interest in other property used at the time of condemnation along with the condemned property for a unified purpose such that the injury to one tract would permanently damage the other. See Werner; Porter v. Commonwealth, 419 Pa. 596, 215 A.2d 646 (1966) and Berman v. Urban Redevelopment Authority of Pittsburgh, 15 Pa. Commonwealth Ct. 1, 324 A.2d 811 (1974).
Section 605 of the Code recognizes that just compensation requires that certain parcels should be assessed as one tract. In order for the tracts to be assessed as one parcel under this section, they must be “owned by one owner”. The section provides:
Where all or a part of several contiguous tracts owned by one owner is condemned or a part of several non-contigous [sic] tracts owned by one owner which are used together for a unified purpose is condemned, damages shall be assessed as if such tracts were one parcel. (Emphasis added.)
Appellants contend that the parcels should be considered to have one owner within the meaning of Section 605 because they are contiguous and plans have been filed showing an integral development of both properties for a residential planned unit development.
In Sams v. Redevelopment Authority of New Kensington, 431 Pa. 240, 244 A.2d 779 (1968), our Supreme Court held that two parcels could not be considered as having the same owners for Section 605
The Court stated that in order to assess non-contiguous tracts as one under Section 605, it is necessary to demonstrate that they are owned by one owner and are used together for a unified purpose. The Court found that the parcels were being used by distinct legal entities and therefore could not be assessed as one unit.
Although in the case at hand we are dealing with contiguous tracts of land, the rationale in Sams is applicable. Although Appellants need not demonstrate that the tracts are used for a unified purpose, they still must demonstrate that they are “owned by one owner”. Where one tract is owned by three individuals as tenants in common and the other by a partnership, we cannot say there is identical ownership even though one of the partners is also one of the tenants in common.
Appellants argue that our decision in Department of Transportation v. Beamer, 89 Pa. Commonwealth Ct. 490, 493 A.2d 130 (1985) is controlling. In that case, Mr. Beamer purchased a one acre tract of land in 1956. He was married at the time and in 1970, he along with his wife purchased, as tenants by the entireties, a contiguous tract of land containing approximately 5.48 acres. Both tracts were vacant when DOT condemned a portion of each in 1979. The Beamers petitioned for a board of viewers contending both tracts should be assessed as one pursuant to Section 605 of the Code. In arguing that they
where a husband and wife seek an assessment of damages pursuant to Section 605 of the Code, and the contiguous properties were purchased by one or both of the spouses during the marriage and can best be used as a single parcel, such properties shall be deemed ‘owned by one owner’ although one parcel is titled in the name of both spouses and the other is titled in the name of one spouse.
Id. at 495, 493 A.2d at 133.
Our decision in Beamer was limited to a situation where one parcel was entireties’ property and the other purchased by one spouse during the marriage. A tenancy by the entirety is characterized by the right of survivor-ship and based on the common law premise that a husband and wife are one person. See United States v. Jacobs, 306 U.S. 363 (1939). This is the basis for the limited holding in Beamer and therefore Beamer is not controlling in the present case.
Appellants also contend that the trial court erred in not hearing additional evidence on ownership of the two tracts or by not remanding to the board of viewers for further testimony on the issue. We disagree. Both parties admit that the one parcel is owned by individuals as tenants in common, the other is owned by a partnership, and only John Sandin has an ownership interest in both.
We hold that the Rosinski tract and the Nock tract cannot be said to be “owned by one owner” for purposes of Section 605 of the Code. Accordingly, we will affirm the order of the trial Court.
Order
And NOW, this 16th day of March, 1989, the order of the Allegheny County Court of Common Pleas, dated February 10, 1988, at GD No. 86-1667, Sur GD Nos. 85-18959 and 85-18960, vacating the report of the board and viewers and remanding to it with directions to make separate determinations as to damages for the taking of the properties which are the subject of this appeal, is affirmed.
Jurisdiction relinquished.
The tracts are located in a district zoned R-3 where planned unit development is permitted.
Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-517.
We note that the apparently interlocutory order of the trial judge in remanding the case was a final appealable order in the eminent domain setting. Rawls v. Central Bucks Joint School BuildingAuthority, 8 Pa. Commonwealth Ct. 491, 303 A.2d 863 (1973) and see Valley Forge Golf Club v. Upper Merion Township, 422 Pa. 227, 221 A.2d 292 (1966).
26 P.S. §1-605.-
Although Section 605 was enacted after the date of condemnation in Sams, the Supreme Court applied this section noting that it merely codified existing case law.