In Re Condemnation by the City of Coatesville of Certain Properties & Property Interests Ex Rel. Public Golf Course

In re CONDEMNATION

Coatesville OF CERTAIN PROPER AND

TIES PROPERTY INTERESTS

FOR USE AS a PUBLIC GOLF

COURSE and Related Facilities and Purposes.

for Other Recreational

Property Airy Road, 123 Mount Coates

ville, PA Tax Parcel No. 38-2-

29.1, (Valley Township) and Tax Par (West Township).

cel No. 28-9-91 Cain

Appeal of Coatesville.

Condemnation of Coatesville Properties Property

of Certain In-

terests for Use as a Public Golf

Course and Related Facilities and for Purposes.

Other Recreational Road,

Property Airy 123 Mount Coates

ville, PA 19320 Tax Parcel No. 38-2- (Valley Township)

29.1 and Tax Par (West Township)

cel No. 28-9-91 Cain Nancy Saha,

Richard A. Saha and K.

h/w.

Appeal of Richard A. Saha Nancy K. Saha. Pennsylvania.

Commonwealth Court of

Argued Nov. 2002. April

Decided

Reargument En Banc Denied

May Yaw, Malvern, Saha. appellee, for

Scott PELLEGRINI, Judge, and BEFORE: JR., MIRARCHI, SIMPSON, Judge, and Judge. Senior Judge BY PELLEGRINI.1 OPINION of the cross-appeals are the Before us Richard A. (City) and City of Coatesville (Condemnees) K. Nancy Saha Saha of Common from an order of Court court) (trial sus- of Chester Pleas overruling part Con- taining part objections to the demnees’ under declarations Eminent Code.2 City filed a dec- August On exercising power laration of purposes “for the of creat- eminent domain public golf course establishing other recreational and related facilities and family regional recre- comprising uses dec- Pursuant to that complex[.]” ational laration, condemn a City sought belonging to Condemnees parcel 47.5-acre City Mount at 123 located outside City The Airy Valley Township. Road a non-exclu- parcel and excluded a six-acre connecting six-acre right-of-way sive from the Airy Mount Road parcel to condemn. property sought response to the declaration filed 28 alia, Third inter alleging, tions authorize the did not Class Code3 for land eminent domain taking of was not for proposed use golf Bass, S. Philadelphia Herbert John by the plans presented purpose, Chester, Carnes, Jr., appellant, West of Con- only nine acres City indicated of Coatesville. amended, as P.L. 3.Act of June reassigned to the author on case was 1. This §§ March 35101-39701. 53 P.S. Sess., 22, 1964, Special P.L. Act of June amended, §§ 1-101-1-903. used, August on or would be. filed about City.4 was located outside of the leave and is SUSTAINED with direction Subsequently, filed an amended the said to amend taking seeking amend specify so as to purpose of the condemnation to the cre- which the Condemnees’ lands have been public golf golf- ation of “a course and is limited to and those lands shall taken related facilities.” then filed nothing be used for other than as and City’s a motion strike the amended dec- municipal golf component for a Emi- taking contending laration of that the thereof, facility directly ancillary aor provided nent Domain no Code golf training facility thereto such as a case, City such a this the had and auspices under the as member not obtained leave of court to file the Association; of The Tee First National declaration, City amended had Council an initiative of the World Golf Founda- taken no official action which authorized to providing tion dedicated affordable filing. the of lim- golf especially youth access to ited financial means. The said Amend- Following evidentiary hearing be included in the amended ment shall oral argument,5 the trial- court entered immediately filing described below. following the order: The Condemnees’ NOW, day January, AND this 11th challenging tion the informational basis 2002, the inter- rationality for and the of the creation of by A. posed Nancy Richard K. Saha # 1 for the Exception by Tract retention pursuant as Condemnees Condemnees, is SUSTAINED with of the Eminent Domain 26 P.S. City and direction to the to amend leave 1-406 to the declaration of filed the tract the said declaration so that by the of Coatesville as Condemnor excepted by therefrom for retention 2, on August by filing 2000 and amended application Condemnees conforms to an February 2001 are SUSTAINED- govern- approved by for subdivision IN-PART and OVERRULED IN body Valley Township. Without Specifically, PART. the Condemnees’ limiting foregoing, and absent relief Motion to the amended declara- Strike by Valley Township Zoning granted February filed on or about Hearing Board or an amendment hereby 2001 is GRANTED. The applicable design regulations, the ex- preliminary objection Condemnees’ chal- frontage lenging adequacy cepted provide of the statement of tract shall road Township’s in the compliance Valley contained action, action, separate Valley Township ship standing In a filed did not have to file the complaint equity jurisdiction the trial court was without seeking injunctive and relief declarative Township’s Valley com- hear the matter against City, Condemnees and two other law, plaint failed to conform to filed property owners whose land within the town- Concluding preliminary objections. that Val- condemned, ship alleging also had claim, justiciable ley Township had stated partial prop- condemnations those prelimi- trial court overruled Valley erties constituted subdivisions within nary objections. Township's development and land subdivision Municipali- Pennsylvania ordinance 2,000 pages more The record contains than (MPC), Planning July ties Code Act of testimony 23 witnesses and more than from amended, P.L. 6,000 pages documentary exhibits. Alleging Valley §§ 10101-11202. Town- its City and Condemnees because design regulations and shall subdivision final, appealable include the not a be of sufficient area so as to 2002 order was because, home, existing accessory Condemnees’ It maintains order. source, san- buildings, terms, part water sub-surface the order sustained facility, and so as itary sewage disposal part Condemnees’ overruled housing up thereon of permit in which objections and each instance horses; all in conformance with three objections were design and area and bulk and use sustained, granted leave and was regulations Township. Unless an amended declara- was directed to file period time is extended this thereby curing the defect shown, good Court cause objection, party neither identified application approval for subdivision shall proceed- court and further put out of Valley Township be submitted to not and, therefore, contemplated; ings were (60) sixty days later than from the date appropriate. not appeal an immediate was The Amended declaration of hereof. objections in the con Preliminary not taking shall be filed with this Court actions serve a text of eminent domain day following than the 10th next later objec than preliminary different approval City’s application of the for civil actions. In re tions filed other In approval. subdivision all other re- Acres, .036 More or Condemnation ob- spects preliminary the Condemnees’ of Less, Plaza Land Owned jections hereby are OVERRULED. Wexford of (Pa.Cmwlth. Associates, 1204 674 A.2d (Trial January Order dated Court’s 1996). only Not are the Rules of Civil 2002.) appeals These followed.6 to eminent do applicable Procedure not I. APPEALABILITY Gilyard Redevelop v. proceedings, main Authority Philadelphia, 780 A.2d ment Though by any not raised of the of (Pa.Cmwlth.2001), court, preliminary 793 but ob in a parties, supplemental 406 of 15, 2002,7 jections pursuant to Section opinion April urges dated this filed very of the Eminent.Domain Code8 serve quash cross-appeals Court to 6. Where a trial court either or 8.Section 406 of the Eminent has sustained 1-406, provides: preliminary objections overruled to a declara scope our of review is limited (a) being thirty days served Within after determining court abused whether the trial condemnation, the con- with notice of its discretion or committed an error of law. preliminary objections to file demnee Street, Washington In re Condemnation 110 upon taking. The court the declaration of Conshohocken, Borough Pennsylvania by filing may extend the time for cause shown Authority Redevelopment Mont objections. Preliminary objec- preliminary gomery, Purposes, 767 A.2d Urban Renewal be the to and shall tions shall be limited (Pa.Cmwlth.), petition 1154 allowance of (1) challenging exclusive method denied, appeal 567 788 A.2d 379 Pa. appro- power right the condemnor to (2001). property unless the priate the condemned (2) adjudicated; previously same has been Supple- (3) 7. The trial court also filed Further sufficiency security; condemnor; May Opinion dated in which mental by the procedure followed City’s (4) recited the actions since the Failure the declaration of opined January opinion. by preliminary It raise these matters waiver supported behavior its conclusion constitute a thereof. tions shall specif- (b) Preliminary objections shall state further that the case must be returned it for grounds upon. ically relied proceedings. application file a subdivision filed under that the purpose than those different effect, Township, deter- Procedure. eminent the Rules of Civil cases, leading up are procedure domain mined expedi- procedure intended as a resolve mak- improper, was declaration to a tiously legal challenges factual and appeal- also of the Order parties Moreover, if the City. able damages. North proceed to determine trial court in direction of the followed the Authority v. A Parcel Penn Water Certain taking, some of amending its declaration of Land, A.2d 168 Pa.Cmwlth. appeal parties the issues raised (1994). mean that all That does not moot, and, therefore, rendered would be pre- domain relating matters to eminent any appeal. never be considered would automatically ap- liminary objections are 11, trial court’s Because the held in example, For we North pealable. out of effectively placed parties order single that the dismissal of a Penn Water the issues raised Con- court as to many not objection among objections, it was a dismissal did appeal waived on because its order, appealable final until immediately appealed need to be not cross-appeals prop- are and Condemnees’ objections were re- the other for review. erly before us solved. case, however, though the In this even THE APPEAL II. CITY’S trial court’s 2002 order re- trial court City contends that the The City, that further action quired sustaining prelimi- Condemnees’ erred preliminary outstanding resolved all order objections on its conclusion nary based appealable objections, making a final City’s partial condemnation right by party. as a matter of either order be- improper Condemnees’ final order appealable It was no less a parcel excepted cause the specif- it directed the to take because Valley Township’s zon- failed to conform to ic, affirmative action order overcome Also, ordinances. subdivision essence, In it re- and/or objections. excepted parcel size and location of the objections any further Condemnees solved intent comply City Council’s failed to declara- might raise to a second amended failed to raise those pur- because practical and for all ob- in their making specific put them out of court poses, jections.9 The direction appealable. order final under (c) had been revoked preliminary objections the condemnation All shall pro- therein pleading. one to be assessed as raised at one time and in section raised, They is may be inconsistent. vided. If an issue of fact (d) copy by depositions or shall serve a take evidence The condemnee court shall preliminary objections on the condem- amend- The court allow otherwise. filing seventy-two specific after nor within hours of a more ment or direct the same. (e) promptly determine all The shall to Condemnees’ 9. Rather than refer pre- preliminary objections and make such issue, raising objection liminary orders and decrees as final stated, agree that the not "[w]e trial court do revesting justice require, including the shall preserved the is- Condemnees have not here preliminary objections are final- of title. If sustained, constitutes the condemnation finally sue of whether ly have the effect of fact, condemnation, the issue was illegal subdivision. In terminating an raised, alia, the Condemnees’ written damages if inter be entitled to demnee shall that it would the Condemnees’ so raised around As to whether Condemnees prop- by the condemned par be surrounded objection excepted to failure of isolating the Condemnees erty thereby land use Valley Township cel to conform to families, properties now ordinances, and their whose they filed 28 ob from adjoin Property, City’s authority to the Condemnees’ jections regarding the in bad These actions are including: each other. property, condemn their fraudulent, discretion, faith, an abuse 7 and 12 of Paragraphs through justifiable. not are denied for Taking the Declaration following reasons: (t) toto, acts and the Condemnor’s faith, illegal, are: made bad omissions (i) Prop- portion The of Condemnees’ discretion, fraudulent, an abuse of arbi- erty subject of the condemna- that is unreasonable. trary, capricious, and Valley Township located in being outside the Township, (Condemnees’ West Cain Objections at Preliminary City of boundaries of the Coatesville. 4r-5.) (j) Prop- of Condemnees’ Our review of Condemnees’ subject

erty that is the of the condemna- any objection objections fails to indicate tion is located the R-l district of City’s failure ensure that addressing the Valley Township, covered zoning conform to the excepted parcel Valley Zoning Ordi- Township ordinances of subdivision and/or nance, and R-l district of West Cain and, therefore, objection Township, Township. 1-406(a). if Even was waived. P.S.

(k) proposed by The uses the Con- they may orally raised that matter have for portions demnor of Condemnees’ the trial court or in their is of brief Property permitted zoning are not the no moment. Section 406 of the Eminent Valley of Township districts and West very in that fail specific Domain Code is Township, Cain noted in the immediate- challenges preliminary ure to raise the ly preceding subparagraph.10 objections at one time results in a waiver

(i) Although challenges. the of See In re Land Condemnor re- those peatedly by stated that it would not take Owned Plaza Assoc. Because Wexford Condemnees, fail challenge City’s of to the the home Condemnor Condemnees’ Valley Township essentially comply has isolated ure to with the ordinances re- drawing square completely zoning home subdivision and/or 3(i), (j) arguments deposi- jections subparagraphs and oral as well as in the contained in condemnees, consulting engineer, (k) the Dun- concluding Russell that because (Tri- leavy City Manager, Paul Janssen.” proceeding, domain lack stand- in an eminent opinion January al Court's dated at ground ing object taking that on the 75) (emphasis original), in the va- "[t]he objec- legal there be a future or factual garious excepted parcel the is an nature of use, of proposed to the issue "[t]he tion preserved properly issue the Sahas have regional family recreational com- whether the argument presented and the evidence and of- be, part, plex whole violative of will including support, its that described fered in municipality which it regulations above, requires that we sustain located, may not be raised is at tion.” Id. A.2d 379. (Trial objection.” by preliminary demnees January opinion dated Court’s opinion, 10. In its 33.) preliminary ob- court overruled Condemnees’ home, location of Condemnees’ was not on the excepted parcel garding raised, objection City’s under the dec- no was not taken there was taking. of to sustain.11 laration to specifical- failed Because Condemnees proper As to whether Condemnees City’s to the declara- ly challenge raise a City’s objection regarding the ly raised an City’s failure to based on the tion intent failure to adhere to Council’s regarding intent adhere Council’s our review of Con- excepted parcel, for the by way excepted parcel in objection fails to challenge was waived. objection upon objection, dicate based l-406(a). rea- regarding foregoing § the size For the intent of Council P.S. parcel.12 excepted sons, directing location of the trial court erred 3(i) subparagraph of Condemnees’ While so City to amend its declaration challenged excepted parcel conformed of their home after alleged isolation and subdivision Valley Township’s zoning home, had it would not take their stated ordinances. objection does not address Coun and size of the cil’s intent as to the location III. CONDEMNEES’APPEAL derogation excepted parcel A. upon filing from that intent trial contend Moreover, the location of as to City to file a allowing erred in precise location excepted parcel, taking in determined based second amended excepted parcel was filed, Moreover, taking has once Although we conclude that Condemnees’ filed. regarding excepted challenge compensation whether the or estimated occurred and Township parcel zon- conformed to the title compensation paid into court and prop- was not filed, and subdivision ordinances preliminary objections are passes. If preliminary objections, erly and, in their raised right possession passes title still but not therefore, waived, we note that preliminary objections are resolved. until the re- nothing Domain Code in the Eminent Commonwealth, De- In re Condemnation entity applica- quires an to file a subdivision Way Right partment Transportation either or after a declaration Legislative Route 38 Pa.Cmwlth. the Eminent is filed. Section 402 of (1978). If we were to hold that A.2d 657 1-402, provides what filed, we application must be a subdivision entity properly a declara- has to do to file the engrafting requirement a would be taken, that taking. land to be tion of As to the Assembly did not procedure that the General entity provide: only requires that an section taking to make a effective. description property the condemned [a] thereof, the identification sufficient to in its 12. While not referred borough, township, or specifying city, the sus- opinion which the trial court in county or counties wherein town and preliminary objections filed tained certain located, a reference to property is taken is Condemnees, supplemen- footnote 50 of its recording the office of the place 15, 2002, April trial opinion filed on tal showing plans recorder of deeds of 3(1) 3(t) of subparagraphs to court cites that or a statement condemned showing property condemned are plans "[tjhere dispute [the be that that can no clude lodged day being for record or on the same regarding City intent as to the Council’s issue deeds in of the recorder of filed in the office by the Con- excepted parcel] was raised county with section such in accordance objections.” demnees in their of this act. April (Supplement Opinion filed 402(b)(5). Nothing § in that 26 P.S. 1— 17.) plan be requires a subdivision section By the holding in In Re Condemnation specify purpose for which order Heidelberg, 58 Pa.Cmwlth. Township land had taken be limited to their been (1981).13 case, A.2d In that municipal golf component thereof taking township filed a declaration of thereto, directly ancillary be- facility land for the of con- acquire nothing in Eminent Domain cause alleyway and structing footpath and/or They argue provides Code such relief. walking bridge by school children for use proposed that because the amendment was development from a residential school. error, not for correction of a technical taking, township its declaration taking declaration of should strips condemn two of land. proposed to stricken, have been and the trial court condemnation reso- township’s initial should have ordered title to the to a of an easement lution referred revested in them. right-of-way over the condemnees’ 406(e) of the Eminent Domain whereas the declaration of tak- property, may that a allow an provides Code court simple referred to the of a fee filing amendment or direct the of a decla- Concluding simple fee interest. taking, stating: ration of intended, as stated interest was promptly The court shall determine all trial court al- taking, declaration of preliminary objections such and make township lowed the to cure the error preliminary and final orders and decrees amending resolution to conform to the its justice require, including shall taking. appeal, we held On revesting of title. If preliminary allowing not err in that the trial court did sustained, finally tions are have township to amend the resolution be- finally the effect of terminating the con- intended simple cause the fee interest was demnation, the condemnee shall be enti- taking. as manifested the declaration of damages tled to as if the condemnation Heidelberg we addressed While Town- had been revoked under Section 408 to ship’s seeking basis for to amend its res- be assessed as therein If an provided. to its declaration of olution to conform raised, issue of act is the court take shall in- taking as a “technical error” that it by depositions evidence or otherwise. advertently referenced an easement or may The court allow amendment or di- simple than a in- right-of-way rather fee rect the a more declara- resolution, there was no indi- terest that a court-directed cation that case 1^406(e). added.) (Emphasis amendment of a declaration of Acknowledging 406(e) pursuant to Section the Emi- pursuant to Section 406(e) Code, a trial only of the Eminent Domain was limited nent Domain Code allow the of a decla- amendment nor have corrections of technical errors ration of argue support we found nothing in power is limited to amendments to cure a a limitation. Because such 406(e) in to original technical error declaration limits a court’s so, filing of a doing they rely on our the amendment of or of direct However, a con- rely Supreme because those cases address 13. Condemnees also on our ability its declaration of Approval Bond demner’s to amend Court’s decision in In Re of of taking right direction Peoples Company, as rather than at the Natural Gas 399 Pa. of (1960), following hearing a a A.2d and this Court's decision of court case, holdings are this those Supply Corpora- objections as in in Stitt v. Consolidation Gas tion, (1972). applicable here. 284 A.2d 313 not Pa.Cmwlth. However, as argument taking, of we declaration specific more the fact that overlooks their brief stated trial court erred say that cannot court, sustaining prelimi- their the trial its declara- City to amend directing the challenged the ade- objection nary clarify purpose taking of tion purpose of statement quacy taking.14 its taking, City’s declaration tained its declaration City to amend directed the B. purpose that the taking specify so as to land had been tak- for which Condemnees’ also contend Condemnees “nothing other than as en was limited pre overruling their trial court erred compo- a golf municipal and for a liminary objection that the declaration thereof, directly ancillary facility or a nent take was was invalid because the training facility un- golf such as a thereto They argue public purpose. for a not and as a member auspices der because, according to the 2000 Con that Assoeiation[.]” First Tee National and the declaration demnation Ordinance (Trial dated Court’s Order of the con purpose the stated above, 2002). Because, we stated as family a for the creation of demnation was or direct may allow amendment trial court complex which would regional recreation of a more theater, hotel, course, movie golf include a 406(e) of the taking, pursuant to Section center, facility, 40 skating ice conference has Eminent lanes, family entertainment cen bowling of the trial appealed not ter, facility, park ball golf a “first tee” order, inquiry then is proper court’s in not all of those public park, facili- golf course or municipal a whether nature, public ancillary tended uses were to a mu- directly ties which are public acceptable was unlaw purpose golf for that course is an nicipal condemnation City.15 by the for condemnation ful. condemning property be- their discretion in 14. Condemnees also contend questionable its decision on overruling cause it based their court erred in motivations, suspect Condemnees capri- arbitrarily, studies objection acted its 2000 allege rushed enact its discre- ciously and in bad faith and abused it "desired Ordinance because Condemnation property. They condemning ar- their neighbor- actions of the (1) to beat out the official golf gue failed to review because the 'take that’ to the ing municipalities and a by golf design plan prepared course course 55.) (Condemnees Howev- Brief Sahas.” architect; (2) necessary failed to undertake er, City’s the record and our review of prior passage of its 2000 land studies enacting process prior its condem- lengthy Ordinance; (3) based its Condemnation any evi- fails to indicate nation ordinance suspect questionable studies and decision on allegation. support such an discretion, and, dence motivations, it abused therefore, was inval- the declaration City’s pro- However, also attack the 15. Condemnees our review of Con- because id. being public posed golf course as not indicates preliminary objections directly compete it would City's purpose because challenge the failed to that Condemnees enterprises well as 15 existing private upon either the based County and Chester design courses in golf to review a course City’s failure However, surrounding areas. golf architect or plan prepared course standing challenge ac- necessary no land have to undertake failure golf competition with other tions as unlawful passage of its 2000 Con- prior to the studies Ordinance, 49.0768 Condemnation allegations courses. In re are those demnation Acres, Township, Partly l-406(a). Rostraver Situate § As to Con- waived. 1, (1967). 427 Pa. 233 A.2d 237 argument City abused its domain to furnish the Pennsylvania right Article 10 of the of eminent provides, part, intended, relevant Constitution public with the use shall, offense, person “No for the same be entitled, right, must be as of public * * * limb; of nor put jeopardy twice life or enjoy property or the taken. use private property applied shall be taken or hand, courts that are On the other use, public without of law and sustaining pub- go inclined to furthest just compensation being without first made expense of rights lic 1, § or secured.” Pa. Const. Art. means rights ‘public contend that use’ added.)16 (Emphasis Speaking for our Su- advantage,’ anything and that ‘public Philadelphia v. preme Court Doman resources, enlarge which tends Housing Authority, 200 A. 331 Pa. energies, increase the industrial and (1938), Justice Stern discussed exten- productive power any promote sively “public how the issue of use” should number of the inhabitants considerable properly be addressed whether land could state, of a section of the or which leads domain, stating: be taken under eminent growth of towns and the creation Domain, Ed., In Nichols Eminent 2d employment new for the resources 129,130,131, pp. vol. sec. it is said: labor, manifestly capital and contributes disagreement ‘The meaning over the general the prosperi- welfare and ‘public largely upon use’ is based and, ty community, giving of the whole question of the sense which the word comprehen- a broad and constitution in the ‘use’ constitution was intended to interpretation, public sive constitutes understood, developed be and has two use.’ views, each opposing of which has its supporters among ardent the text writ- sup- ers courts last resort. The whole, although the cases on this On

porters ‘public of one school insist that subject Pennsylvania have been com- is, by public’, use’ means ‘use number, may fairly paratively few public employment, service or and that that, firmly maintaining be stated while consequently public to make a use duty principle private property can- upon person must devolve corporation seeking by government to take not be taken for other 16. Section 3703 of the Third Class pub- Code and not dedicated or devoted to city authorizes a to condemn land outside its may also lease lands and lic use. Cities geographic boundary, providing: buildings temporary in such cities for use take, use, may Lands, upon, purchase Cities enter purposes. property and for such acquire, by gift right of emi- city may buildings outside the limits of domain, lands, property buildings, nent acquired manner recreation be in like for purpose making, extending, enlarg- for may places, and such lands be annexed ing, maintaining places recreation city, provided by in the manner this act public parks, park- shall consist territory city. to a for the annexation ways, playgrounds, playfields, gymnasiums, added.) (Emphasis Our 53 P.S. 38703. baths, swimming pools, or indoor re- acknowledged Supreme Court has that it centers, may levy creation and collect such knowledge municipalities main- common necessary special pay as for taxes parks just public golf courses in their tain same, appropriations and make for the diamonds, they courts and do baseball tennis maintenance, care, regula- improvement, tion, playgrounds. New Castle v. Lawrence government of the same. Cities al., Pa. 44 A.2d 589 et. may designate apart use and set (1945); City Pittsburgh, v. 366 Pa. Bernstein purposes specified in this section (1951). 77 A.2d 452 buildings lands and owned such cities portions involuntary, by certain selected use, they justify the con- public a

than occupancy An population. judicial interpretation of clusion to, even be vital may promote, or not been circumscribed some ‘public use’ has importance formulas Nor is legalistic mere of all. our State the welfare On the con- circumstance that standards. to the philological ascribed be left, as indeed has been tenants —will from trary, definition persons some —the be, circumstances varying to the more from it must time receive benefit time to arise, special with general and situations which dwellings than the use of economic to the social and ap- reference would The same observation public. in which the period of the background schools. The hospitals ply itself for problem presents particular golf play- course or public land a Moreover, as to views consideration. al- public use ground would be for necessarily public constitutes a use it, what using are though, players while some conceptions of vary changing public are nec- members all other government, so scope and functions and en- utilizing essarily excluded from examples to-day there are familiar joying the difference facilities. formerly would not of such use which vari- occupancy in these the duration of govern- As have been so considered. degree. It is not is one ous instances grow- mental activities increase with community or entire essential that the of soci- integration ing complexity even considerable naturally ‘public use’ ety, concept enjoy participate directly should expands proportion. to make improvement in order one. public use a 217-218, A. Pa. to address Stern went on Justice 221-222, A. 331 Pa. Housing Philadelphia involving factors added.) Citing Justice Stern’s (Emphasis operate new hous- Authority’s proposal taking of land for regarding the statement whether those projects, determining Court, Supreme our golf public against of or weighed in favor factors later, in New Castle v. Lawrence City of a public was for finding project al., 175, 44 A.2d 589 353 Pa. et. use, stating: (1945), course city-owned golf that a held city located outside boundaries pro- involved in the of the factors Some opera- incidental to the and the facilities housing pro- the new posed operation of rooms, course, i.e., club golf tion of the by plaintiff jects emphasized are restaurant, rooms, ladies’ bath and locker theory of a being opposed public pur- used for “public property was upon analysis, public prove, use purposes exemption. of tax poses” for in the consideration weight little or no Castle, the New Court Although fact that subject. Thus the city’s use of addressing whether was be occu- cannot and will not dwellings taxation, we exempt from all, only by a few of pied by but as to whether its conclusion believe qualifica- having prescribed a public used for golf course was legal wholly lacking poverty, is therefore, and, here, equally applicable may be the same significance, because trial court erred say cannot we and indeed jails, poorhouses, said as to overruling Condemnees’ are neces- many institutions which their use of use, City’s proposed tion that the voluntary or confined to a sarily Tract). City proposed The to locate on the property was not for a use.17 center, including recreation regional land a Accordingly, foregoing, based on golf-training center. golf course of the trial court is reversed as to order that which sustained portion Condemnees’ objections preliminary filed objection regarding the ex- issues, taking. They to the raised various City cepted parcel directing the including amend its declaration of so Although [City] repeatedly Valley excepted parcel conformed home of that it would not take the stated Township’s zoning and subdivision ordi- Condemnees, [City] essentially has iso- respects, nances. In all the trial other by drawing home lated Condemnees’ court’s order is affirmed. around the Con- square completely that it sur- demnees’ home so would be ORDER the condemned rounded NOW, day April, AND this 7th thereby isolating the Condemnees and of the order of the Court of families, properties now ad- their whose Common Pleas of Chester which join from property, the Condemnees’ preliminary objec- sustained Condemnees’ are in each other. These actions bad regarding excepted parcel faith, discretion, fraudulent, an abuse of directing City to amend its declaration justifiable. and not so that excepted parcel formed to the Township’s zoning a de p. [City] caused facto and subdivision ordinances reversed. In Property based on the size Condemnees’ all respects, other the trial court’s order is condemned, and location the area affirmed. thereby causing deprivation substantial to the Condemnees of the beneficial use Dissenting Opinion by Judge enjoyment remaining prop- of their SIMPSON. Further, erty. such action constitutes I respectfully majority dissent from the an abuse of discretion and bad faith opinion because finds waiver of the con- [City]. trolling issues which fully litigated by were parties addressed court. [City] sought r. has to condemn Property large portions Condemnees’ approximately The condemned and unreliable questionable based acres of Condemnees’ 47.5 acre Such action constitutes an information. City Valley Township. outside the faith, and of discretion and bad abuse land included Condemnees’ restored 250- justification for this condemnation year-old they farmhouse in which raised has no reasonable basis. children, though their the farmhouse itself excepted taking (Excepted from the objections Finally, assert Condemnees contend that the trial Condemnees’ properly post overruling City failed to call court erred in their that the meeting objection comply special at which failed to notice of passed Ordinance regarding spe- Council the Condemnation its Charter the June Char- meeting during procedural violation of its cial Council City, argument has been passed reading by the the first of the 2000 Condem- ter However, l-406(a). nation Ordinance. because none waived. toto, issues [City’s] t. acts information. These and omis- reliable were fully in favor of illegal, faith, litigated sions are: made bad and resolved Con- discretion, Also, arbi- fraudulent, challenges abuse demnees. trary, capricious, and unreasonable. included made in “illegal, actions were bad (R.R.) at Reproduced Record 488a-89a fraudulent, discretion, faith, an abuse of added). (emphasis arbitrary, capricious, and unreasonable.” Significant ensued. litigation Ultimate- fully litigated were and re- These issues trial ly, the court sustained Condemnees’ in favor of Condemnees. solved objections challenging the cre- ation of the Tract. The trial Excepted I In of the to foregoing, view decline significant court noted several deficiencies litigated duck and issues reverse the Excepted partial in the Tract after application trial on a court tortured In particular, Excepted demnation. waiver. source, left Tract was without a water Rather, affirm I would the trial court field, disposal a sanitary sewage without express statutory based on the mandate to road, frontage without promptly “determine all acreage lawfully sufficient to main- without tions make such final existing tain the use. The trial court justice decrees as shall re- orders and contrary that these found conditions were ” 406(e) quire .... of the Eminent for the Council’s direction extrater- l-406(e). In my partial required ritorial view, is statutory mandate intentional- Excepted designed Tract “be so as ly broad, trial empowering the compliance lawful and in circumstances, fairly existing deal with Township’s zoning regulations.” Trial Ct. legislature Also, relying rather than on the at Op., 93-94. specifically anticipate which the discussing each issue after to con- “the failure ingenuity Findings of counsel can legal devise. duct sufficient factual and investi- arbitrariness, caprice, of law and error determining configura- gation trial Tract],” justify abuse of discretion court’s id. 44 Excepted [the broad, express exercise of A.2d the trial court found “that the justice. Philadelphia, do See Weber v. 437 particular configuration location (1970); Winger Pa. A.2d v. Excepted manifestly was both [the Tract] Aires, (1952); Pa. A.2d 521 In product unreasonable and the direct etc., Heidelberg Footpath, Re Township misapplication of Id. at 44 A.2d law.” (1981). 428 A.2d 282 Pa.Cmwlth. The trial court concluded: 11) excepted parcel failure of

comply express with the direction product Council and evi- arbitrariness, caprice,

dences error

law, and abuse of discretion. 100, 44

Id. at A.2d summary, challenges explicitly

included

raising configuration, size and location whether extent of questionable and un- based on

Case Details

Case Name: In Re Condemnation by the City of Coatesville of Certain Properties & Property Interests Ex Rel. Public Golf Course

Court Name: Commonwealth Court of Pennsylvania

Date Published: Apr 7, 2003

Citation: 822 A.2d 846

Court Abbreviation: Pa. Commw. Ct.