DocketNumber: Appeal, No. 3065 C.D. 1985
Citation Numbers: 107 Pa. Commw. 235, 528 A.2d 663
Judges: Colins, Narick, Only, Palladino
Filed Date: 7/2/1987
Status: Precedential
Modified Date: 6/24/2022
Opinion by
Ivan Popkin and Susan Popkin, his wife (Popkins) appeal from an order of the Court of Common Pleas of Carbon County dismissing their preliminary objections to a declaration of taking filed by the Department of General Services (DGS). For the reasons set forth below, we affirm.
Although the relevant facts in this matter are not disputed, the Popkins filed preliminary objections on September 30, 1982 alleging: (1) Section 2401.1 of the Code, 71 P.S. §631.1 did not confer authority upon the DGS to condemn Appellants’ property; (2) the Wild and Scenic Rivers Act, 16 U.S.C. §1271 et seq. (WSRA), is the controlling law, and the DGS in violation of the WSRA has foiled to give the Popkins the right to use or occupy the condemned property during their lifetime; and (3) the DGS has condemned more land than is necessary and has otherwise acted arbitrarily and discriminatorily in determining which properties or what portions thereof are to be condemned for the development of the Lehigh Gorge.
The Popkins first argue that pursuant to Section 2401.1, Clause 2 (Clause 2) and Clause 4 (Clause 4) of the Code, the DGS is not authorized to condemn the
The purpose of the taking is indicated in paragraph four of the declaration of taking:
4. The use of which the properties is taken is the access to, and preservation, dedication and conservation of the upper Lehigh River, its banks, surrounding land and waters which are*239 needed for recreation, health and scenery of the citizens of the Commonwealth of Pennsylvania.
In paragraph two of the declaration of taking, the DGS indicated that the authority for the taking was Section 2401.1 of the Code, but no reference was made to any particular clause in Section 2401.1 of the Code. Plowever, The Eminent Domain Code
To acquire land in the name of the Commonwealth by purchase or eminent domain proceedings, in fee or in such right, title, interest, or easement as the department may deem necessary for the project as specifically authorized in a capital budget or other legislation, excluding, however, highways, bridges and other transportation facilities. (Emphasis added.)
The other legislation referred to in Clause 4 includes the Supplemental Capital Budget Act of 1980, Act of December 18, 1980, P.L. 1252 (Act 228). Act 228 is cited by the DGS in paragraph 3 of its declaration of taking.
Secondly, the Popkins contend that the DGS has not given the Popkins an option to retain or utilize their property during their lifetime , as required by the WSRA. As support for their position, the Popkins argue that the WSRA is applicable to the present case because the DGS has received federal funds for the Lehigh Gorge project. Although the WSRA does provide for a condemnees right of use or occupancy of condemned property, this provision applies only to situations where condemnation proceedings have been initiated on the federal level by the Secretary of Interior or the Secretary of Agriculture.
Lastly, the Popkins argue that the DGS has condemned more land than is necessary and has otherwise acted arbitrarily and discriminatorily. As already indicated by the trial court, the Popkins did not raise this issue in their preliminary objections. Rather this argument was first raised by the Popkins in a brief submitted three years after the declaration of taking was filed. The trial court, noting that the Popkins failed to offer any explanation for the delay, held that the objection was untimely.
Order
And Now, this 2nd day of July, 1987, the order of the Court of Common Pleas of Carbon County in the above-captioned matter is affirmed.
Act of April 9, 1929. Section 2401.1 was added by Section 9 of the Act of July 22, 1975, P.L. 75, 71 P.S. §631.1
The declaration of taking also provided in paragraph three that “By resolution of the Board of the General State Authority at meetings held on September 20, 1972 and revised on February 19, 1975, the taking was authorized. ... By Section 22 of said Act 45 the powers and fimctions of the General State Authority were transferred to the Department of General Services. By Act 228 approved December 18, 1980 the authorized funding was increased. . . .”
Clause 2 provides:
In addition to all other powers and duties set forth in this Act, the Department of General Services shall have the power, and its duty shall be: . . .
(2) To have exclusive authority over all construction of capital public improvement projects passed in a Commonwealth Capital Budget or other legislation; excluding, however, highways, bridges and other transportation facilities. ‘Public Improvement Projects’ means and includes constructing, improving, and acquiring sewers, sewer systems, and sewage treatment works for State institutions of every kind and character, public buildings for the use of the Commonwealth, State arsenals, armories, and military reserves, State airports and landing fields, State institutions of every kind and character, additions and improvements to State colleges and Indiana University of Pennsylvania, State-related educational institutions, necessary roads, bridges, tunnels, and relocation of highways needed for ‘public improvement projects,’ swimming pools, reservoirs and lakes, marinas, marine terminals, port improvements, low-head dams, improvements to river embankments, desilting dams, impoundment basins, flood control projects, and the purchase of lands for rehabilitation purposes in connection with state institutions and for use of state colleges: . . .
Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 PS. §l-402(b)(2) (Supp. 1986).
Act 228 provides in pertinent part:
The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:
Section 1. Itemization and authorization of public improvement projects.—Additional capital projects in the category of public improvement projects to be acquired or constructed by the Department of General Services, its successors or assigns, and to be financed by the incurring of debt, are hereby itemized, together with the respective*240 estimated financial costs and the total additional amount authorized for the public improvement projects as follows:
B. Itemization of Public Improvement Projects:
PROJECT BASE DESIGN & TOTAL PROJECT CONTINGEN- PROJECT ALLOCA- CIES ALLOCATION TION
IV. Department of Environmental Resources
(e) Lehigh Gorge State Park
(1) Additional funds for DGS 194-46, Land Acquisition
2,334,000 350,000 2,684,000
The Acts were not cited by the DGS in the declaration of taking.
Section 6 of the WSRA, 16 U.S.C. §1273(a) and (g).
Section 406 of the Eminent Domain Code, 26 P.S. §1-406 (Supp. 1986) provides in pertinent part:
(a) Within thirty days after being served with notice of condemnation, the condemnee may file preliminary objections to the declaration of taking. The court upon cause shown may extend the time for filing preliminary objections. . . .