91 Pa. Commw. 622 | Pa. Commw. Ct. | 1985
Opinion by
Appellant, Irving Miller, appeals from the orders of the Philadelphia County Court of Common Pleas which overruled Appellants’ preliminary objections to a declaration of taking filed by the Department of Transportation (Department).
Appellant is the successor-in-interest to Millers, Inc., the former owner of a commercial property on 1517-23 Spring Street, Philadelphia, Pennsylvania.
Appellant filed preliminary objections to the declaration of taking, alleging that the 1979 amendment
Initially Appellant argues that the trial court erred in failing to hold an evidentiary hearing. [Section 406 of the Eminent Domain Code,
(e) The court shall determine promptly all preliminary objections and make such preliminary and final orders and decrees as justice shall require, including .the revesting of title.
... If an issue of -fact is raised the court shall take evidence by depositions or otherwise.
It is clear from this 'Section that an evidentiary hearing is required only where there are disputed issues of fact. Where there are no disputed facts, and the issues before the court are purely legal, the court may rule on the preliminary objection without a hearing. See Milas Appeal, 36 Pa. Commonwealth Ct. 1, 387 A.2d 183 (1978). In the present case the trial court stated in its opinion that “the facts underlying the instant controversy are undisputed; the parties fail to agree, however, with respect to the correct legal principles
Neither party disputed that the Department had been leasing the subject property to Appellant for use as parking, or that it sought to condemn the fee in order that a parking garage could be constructed on the site. The disputed issues raised in the preliminary objections are whether from these admitted facts it can be held that the Department abandoned the property or exceeded its permissible authority in condemning the fee. These are issues ¡of law which can be resolved by construing applicable statutory and case law authority.
Turning to the merits of the preliminary objections, we first consider Appellant’s claim that ¡Section 2003(e) of the Code does not apply to easements acquired prior to the effective date of the 1979 amendment to the Section. ¡Section 2003(e) provides, in pertinent part:
(2) In addition to land required for highways and other transportation facilities, the Department may acquire:
(iii) the fee underlying any easement previously acquired by the department.
Appellant argues that Section 2003(e) (2) (iii) does not apply to the present highway easement, because it was originally acquired by the Department in 1972.
Absent clear language to the contrary, statutes are to be construed to ¡operate ¡prospectively only. Section 1926 of the ¡Statutory Construction Act of 1972, 1 Pa. C. ¡S. §1926. It is well settled, however, that a statute does not operate retrospectively merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.
Appellant also .argues 'that the Department was without legal authority to condemn the underlying fee of the .subject property because the condemnation was not undertaken for “transportation purposes” as required by Section 2003(e)(1) of the Code. Section 2003(e)(1) authorized the Department “[t]o acquire ■by gift, purchase, condemnation or otherwise, land in. fee simple ... in the name of the Commonwealth, for all transportation purposes.” (Emphasis added.)
Initially, we note that the condemnation in this case did not proceed under -Section 2003(e).(l), .but rather under 2003(e).(2), which permits “in addition to land required for highway and other transportation facilities,” the acquisition of the fee underlying a previously acquired highway easement. (.Emphasis added.) Unlike .Section 2003(e),(1), .Section 2003(e)(2) contains no requirement that the condemnation of the imderlymg fee itself be justified as undertaken for a transportation purpose. It is apparent, therefore, that a condemnation under Section 2003(e)(2) need not address the underlying reasons for the- .proposed acquisition.
Even if the present condemnation .were required to be undertaken for a transportation purpose, however, we would still conclude that the condemnation was authorized and proper. The present condemnation was
In accordance with the broad construction given to the phrase “transportation purpose” in other contexts, we must also conclude that, for purposes of Section 2003(e)(1) of the -Code, “transportation -purpose” is a broad enough phrase to include .transportation related activities .such as the parking garage in the present case, which was designed as an integral part of the highway project and was intended to mitigate the loss of existing .surface parking and minimize traffic congestion.
As an alternative argument, Appellant -argues that the Department abandoned its easement in the subject property, arid therefore could not condemn any underlying fee under Section 2003.(e)i(.2) of the Code. Appellant contends that the failure to use the property as originally intended constituted an abandonment.
In the present case, there was no allegation that the Department formally vacated the subject property. On the contrary, it was agreed that the Department was leasing the property to a third party (E-Z Parks, Inc.) for use as a parking lot. The lease of a highway easement for such a use is specifically permitted by Section 495.6(f) of the Department’s regulations, 67 Pa. Code §495.6.(f). Clearly, the Department did not abandon the easement, but instead continued to use it in accordance with its own regulations.
For the foregoing reasons we conclude that the Department had the authority to condemn the underlying fee in the subject property. Accordingly, we affirm the trial court’s dismissal of Appellant’s preliminary objections to the Department’s declaration of taking.
Amended Order in 3168 C.D. 1984
Now, September 20, 1985, the Order entered September 12,1985, is amended to .read as follows:
The order of the Court of Common Pleas of Philadelphia County, No. 3744 July Term, 1984, dated September 27,1984 is hereby affirmed.
Now, 'September 12, 1985, the appeal .taken from the trial court’s order denying the Appellant’s application for reconsideration is hereby quashed. .
Section 3 of the Act of December 7, 1979, P.L. 478.
Act of April 9, 1929, P.D. 177, as amended, 71 P.S. §513.
71 P.S. §513 (e).
Our scope of review in an eminent domain case is to determine whether the trial court abused its discretion or committed an error of law. Captline v. County of Allegheny, 74 Pa. Commonwealth Ct. 85, 459 A.2d 1298 (1983), cert. denied, 104 S. Ct. 1679 (1984).
Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-406.
71 P.S. §512(e).