26 Pa. Commw. 70 | Pa. Commw. Ct. | 1976
Opinion by
As part of an extensive program (Project No. 4) to expand an existing sewage collection system, the Millcreek Township Sewer Authority (Sewer Authority) planned to construct public sewers to serve properties fronting on Watson Boad, a private road within the township. On June 3, 1975, in accordance with the Municipality Authorities Act of 1945
In appeals from a lower court dismissing preliminary objections to a declaration of taking, our scope of review is limited to a determination of whether or not the court below abused its discretion or committed an error of law in reaching its conclusions. It is not for this Court to determine whether or not we would have reached the same conclusions but rather whether or not the record contains sufficient competent evidence to support the conclusions of the court below. Blank v. Columbia Gas of Pennsylvania, Inc., 11 Pa. Commonwealth Ct. 304, 314 A.2d 880 (1974).
Among the objections raised by the condemnees and of those preserved on appeal is the assertion that notice of the declaration of taking served on the condemnees failed to meet the requirements of the Eminent Domain Code (Code). Particularly concerned are the provisions of Section 405(c) of the Code, 26 P.S. §1-405 (c) which require that the notice describe the purpose for the condemnation, state the nature of the title being acquired, and, in the case of a partial taking as is the case here, include a plot plan showing the condemnee’s entire property and the area being taken. Upon examination of the record, however, we must affirm the lower court’s finding that these requirements have been met. The affidavit of service of the notice filed in the court below indicates that a copy of the actual declaration of taking was included with notice served upon each condemnee. The declaration by its numbered paragraphs and accompany
The condemnees also alleged in their preliminary objections that the public benefits of the Watson Road sewer project are not sufficiently substantial to justify an exercise of the power of condemnation. It is well established, of course, that the power of eminent domain cannot be used to acquire property for private rather than public purposes, Borough of Big Run v. Shaw, 16 Pa. Commonwealth Ct. 623, 330 A.2d 315 (1975), but a taking does not lose its public character merely because private interests may also be benefited. Belovsky v. Redevelopment Authority of Philadelphia, 357 Pa. 329, 54 A.2d 277 (1947). The condemnees here argue that sewers on Watson Road will serve no public purpose, asserting that only the construction contractor will benefit from the installation of the sewer line. They point to the fact that the on-lot sewage disposal systems currently serving the properties have neither malfunctioned nor contributed to local pollution. Moreover, because the proposed sewer will be a closed-end line, it is not necessary to the flow in the township wide sewage collection system. They do not believe, therefore, that large construction costs for this project can be justified. Again, however, our examination of the record reveals ample justification. Indeed in March of 1975, the Pennsylvania Department of Environmental Resources had ordered the township to proceed with the project. Moreover, soil interpretations prepared in 1972 by the United States Department of Agriculture Conservation Service indicated that 90 per cent of the soils in the Erie County area have characteristics “that seriously limit
Still further objection was raised. that the' lower court erred in failing to take testimony as tó the adequacy of the $50,000 condemnation bond pdsted by the Sewer Authority, citing Golden Dawn Shops, Inc. v. Philadelphia Redevelopment Authority, 3 Pa. Commonwealth Ct. 314, 282 A.2d 395 (1971). The condemnees properly point out that where an objection to the sufficiency of the bond is raised; the trial judge should not dismiss the objection without requiring ah answer and holding a hearing. Faris Appeal, 435 Pa. 55, 254 A.2d 653 (1968). We do not believé, however, that the trial judge has failed to satisfy his obligation here. When counsel for the condemnees indicated a desire to produce testimony on the- adequacy- of the bond, the judge below, while showing some consternation over condemnees’ numerous technical objections, afforded the condemnees a second hearing at which the condemnees failed to press for additional evidence concerning the sufficiency of the bond. -Indeed some evidence was presented as to the financial status of the Sewer Authority, however, and, in these circumstances, we do not believe that the judge below abused his discretion in dismissing the condemnees’ objection. See Milford Traumbauersville Area Sewer Authority v. Approximately 0.753 Acres of Land Known to be Property of John A. M. McCarthy, 25 Pa. Commonwealth Ct. 13, 358 A.2d 450 (1976).
Finally, as to the protection of scenic and environmental values, we are mindful that Article I, Section 27 of the Constitution of Pennsylvania charges the various agencies of government to act within their power, as trustees of public natural resources, to make
In view of the foregoing, therefore, we believe that the Court of Common Pleas of Erie County properly dismissed the preliminary objections filed by the condemnees here involved, and the order of the court below, therefore, is affirmed.
Act of May 2, 1945, P.L. 382, as amended, 53 P.S. §301 et seq.
Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-101 et seq.
At one point in the hearings below, Dr. Otto testified as follows : “And therefore there is no reasonable doubt in my mind that along all or most of Watson Road we would find conditions very similar to what we found in our borings, and it was so permeable that septic tanks would cause fluids to disappear with great rapidity, but they go out so fast that there isn’t time for the normal bacterial purification to take place that a properly’ functioning septic tank works. To be sure, the landowners say our septic tanks work perfectly. They mean that no matter how much fluid they put in it disappears, but it goes into the groundwater supply before there is a chance to adequately purify it, ánd there are people to the north, some along Wolfe Road, that still have wells that they use,- and it is only a matter of time till contamination reaches those wells.’- '•