Lead Opinion
OPINION BY
The Reading Area Water Authority (RAWA) appeals from the order of the Court of Common Pleas of Berks County (trial court) sustaining the preliminary objections of Appellees, the Schuylkill River Greenway Association (the Greenway) and Bern Township (the Township), and dismissing the Declaration of Taking filed by RAWA. We reverse and remand.
This aрpeal arises from the condemnation of land in Bern Township, Berks County, for the construction, maintenance and operation of utility lines and appurtenance of a water main. Appellees’ property
On February 9, 2009, RAWA adopted Resolution No. 2009-2 (RAWA Resolution), which authorized RAWA to exercise its eminent domain power to condemn a utility easement across the Greenway’s prоperty. The RAWA Resolution stated that the utility easement would be used for water, sewer and storm water purposes. The RAWA Resolution also provided that Fortune would be responsible for all costs associated with the eminent domain proceeding including any amount of just compensation. On July 27, 2009, the Reading City Council adopted Resolution No. 91-2009 (Council Resolution)
Appellees filed preliminary objections and a supporting brief arguing that the taking was invalid, asserting that the size of the proposed easement is larger than necessary to accommodate RAWA’s water line, a service that all parties agree is a
On August 31, 2010, the trial court held a hearing. Appellees offered the testimony of the Tоwnship Manager, Brian Potts, who primarily testified regarding the possible detrimental effects that the easement would have.on the construction of a walking trail that the Township intends to construct. The trial court also heard oral argument on the preliminary objections. Appellees clarified that they were nоt disputing RAWA’s right to condemn a thirty-foot easement for installation of water lines, but were disputing RAWA’s authority to condemn land for the installation of sewer and storm water lines, an end wall, grading, and other improvements. August 21, 2010 Hearing, Notes of Testimony (N.T.) at 30. Appellees argued that the taking was excessive with regard to the storm water management facilities and the “privately-owned sanitary facilities” as the taking of land for these facilities would be purely for the benefit of a private enterprise. Id. at 34. RAWA argued that the provision of water and sewer services are inherently public purposes and that RAWA had obtained from the Reading City Council all the necessary authorizations required to exercise eminent domain powers for purposes stated in the Declaration.
On June 30, 2011, the trial court issued an order sustaining the preliminary objections. RAWA filed a timely appeal to this court. The trial court, in a subsequently filed opinion, stated that the preliminary оbjections were properly sustained because RAWA was taking private property to serve a private enterprise and the size of the easement sought was not reasonably related to RAWA’s only public purpose, the provision of water. The trial court concluded that the “primary and paramount benefactor of the proposed condemnation” for sewer and storm water facilities was Fortune and not the general public and that the “fifty-foot wide easement was excessive in size, as half of that land would be used for private sewage and stormwater facilities.” Trial Court Opinion at 4-5; R.R. at 66a-67а. The trial court stated that “[ujnder the guise of expanding their customer base and providing water to the public, RAWA is attempting to achieve its true goal and take land from one private owner and give it to another.” Id. at 6; R.R. 68a.
RAWA appeals to this court, asserting that the trial court erred in sustaining the preliminary objections because the condemnation of property to provide all three facilities, water, sewer and storm water, is inherently a public use and any benefit accruing to a private developer does not strip the condemnation of its public nature. We agree.
The trial court relied upon Bell Atlantic Mobile Systems, Inc. v. Zoning Hearing Board of the Township of O’Hara,
The trial court also relied upon In re Condemnation by the Beaver Falls Municipal Authority,
The trial court concluded that just as wireless services in Bell Atlantic were not related to the authority’s public purpose regarding the water system, so toо Fortune’s sewer and storm water facilities are not related to RAWA’s stated public purpose. The trial court relied upon Beaver Falls to conclude that RAWA overreached and took more land than necessary to effectuate its stated purpose and that the taking was excessive because the “twenty fеet [was] being condemned for private stormwater facilities” and “privately-owned sanitary facilities.” Trial Court’s Opinion at 8; R.R. at 70a.
The trial court’s reliance upon Bell Atlantic and Beaver Falls is misplaced. In the present case, RAWA’s stated purpose is for the installation of a water main and utility lines as reflected by the Declaration. Thus, the scope of the projеct as stated by the Declaration encompasses the provision of water services and combined sewer and storm water management facilities. RAWA is authorized by law to use its power of eminent domain to condemn land for the provision of water and sewer facilities. Section 5607(d)(15) of the Municipal Authоrities Act, 53 Pa.C.S. § 5607(d)(15), grants the power of eminent domain to municipal authorities. Municipal authorities are authorized by Section 5607(a)(10), 53 Pa.C.S. § 5607(a)(10), to acquire, hold, construct, finance, improve, maintain and operate, own or lease waterworks, water supply works, and water distribution systems. Section 5607(a)(5), 53 Pa.C.S. § 5607(a)(5), grants municipal authorities the same powers with regard to sewers and sewer systems. Section 5615(a)(1), 53 Pa.C.S. § 5615(a)(1), limits the power of eminent domain to acquisition of interests in lands that “the authority deems necessary for any of the purposes of this chapter.” Athough the Municipal Authorities Act does not list construction of storm watеr management facilities among the types of projects enumerated in Section 5607(a) (Scope of projects permitted), this issue does not affect the outcome of this case, as in the easement the proposed storm water outflow is combined in the same pipeline conveying sewage effluent treated to a high degree and suitable for
Nonetheless, a municipal authority may only exercise eminent domain powers to condemn property for public use. Pa. Const. Art. I, § 10; Section 204(a) of the Eminent Domain Act, as amended by the Property Rights Protection Act, 26 Pa.C.S. § 204(a); In re Bruce Ave.,
The trial court summarily characterized the sewer and storm water management facilities as “private” and determined that the public is not the primary beneficiary of the RAWA’s exercise of eminent domain becаuse Fortune would significantly benefit from the taking. Both this Court and the Legislature have stated that the exercise of the powers of eminent domain to construct or acquire sewers and storm water systems may constitute a public purpose. Condemnation of a Permanent Right-of-Way,
In this case, RAWA is not transferring title from one private entity to another, but is taking property from the Greenway to hold publicly for the purpose of providing water services and to facilitate the construction of sewer and storm water management facilities. Although there is no indication in the record whether or not the sewer and storm water facilities will eventually be dedicated to RAWA, there also is no indication that RAWA intends to relinquish ownership of the easement. Fortune is constructing these facilities at its own cost, providing sewer and storm water management to those members of the public who will live in the development.
For all of the foregoing reasons, we reverse and remand to the trial court for disposition of the remaining preliminary objections.
Notes
. The Greenway is the record owner of the рroperty and the Township is the equitable owner. The Township intends to build a walking trail as part of the Schuylkill River Trail on the land at issue.
. RAWA is authorized only to engage in projects related to waterworks, water supply works or water distribution systems. A resolution of the Reading City Council was necessary to authorize the use of eminent domain powers in the acquisition of land to be used for sanitary sewer lines and storm water facilities in addition to RAWA water lines. R.R. at 47a.
. Appellees also argued that the bond attached to the Declaration was inadequate. The trial court did not address this preliminary objection.
. Pennsylvania courts equаte "public use” with "public purpose.” Middletown Twp. v. Lands of Stone,
. Appellees rely upon Bear Creek Township v. Riebel, 37 A.3d 64 (Pa.Cmwlth.2012), for the proposition that eminent domain powers cannot be used when the primary purpose is to
Dissenting Opinion
dissents.
ORDER
AND NOW, this 30th day of July, 2012, the order of the Court of Common Pleas of Berks County is hereby REVERSED and the matter is REMANDED for further proceedings.
Jurisdiction relinquished.