C.A. Conley, an Individual v. County of Allegheny

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Catherine A. Conley, an Individual, :
Appellant :
:
v. : No. 642 C.D. 2019
:
County of Allegheny, a Second Class :
County of the Commonwealth of :
Pennsylvania :
:
Catherine A. Conley, an Individual :
:
v. : No. 695 C.D. 2019
: Argued: May 15, 2020
County of Allegheny, a Second Class :
County of the Commonwealth of :
Pennsylvania, :
Appellant :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: July 28, 2020
Before the Court are the cross-appeals of Catherine A. Conley (Owner)1 and
the County of Allegheny (County) from a decision of the Court of Common Pleas
of Allegheny County (trial court), dated April 23, 2019. The trial court sustained
the County’s preliminary objections to Owner’s Petition for Appointment of a Board
1
Owner is an attorney representing herself pro se.
of Viewers (Petition). In addition, the trial court ordered the County to take certain
remedial actions with respect to Owner’s property. We have consolidated the
parties’ cross-appeals for purposes of analysis and disposition. We now affirm in
part, reverse in part, and remand to the trial court for proceedings before a board of
viewers.
I. BACKGROUND
Owner owns the property at 327 Thompson Run Road in Ross Township,
Allegheny County, Pennsylvania (the Property). The Property fronts on Thompson
Run Road, a public road owned and maintained by the County. In August 2016, a
County official informed Owner that the County would perform improvements to
Thompson Run Road near the Property. In April 2017, the same official notified
Owner that the County would remove three trees on the Property that were located
within the right-of-way of Thompson Run Road on the basis that the trees were
impeding sight along the road.
In late August 2017, employees of the County entered the Property and began
a project to replace a manhole and underground stormwater pipes on the Property.
The County did not notify Owner that it would be performing the stormwater facility
maintenance. On August 29, 2017, Owner arrived home to find that County
contractors had removed portions of her lawn, shrubbery, and subsurface invisible
fencing. County contractors continued to enter the Property to work on the
stormwater facility project through December 2017.
In October 2017, during the County’s continuing work on the stormwater
facility project on the Property, Owner filed an action in equity before the trial court.
Specifically, Owner sought to enjoin the County from entering the Property for
purposes of the tree removal project of which County employees had informed
2
Owner in April 2017. On October 25, 2017, following a hearing, the trial court
denied Owner’s request for a preliminary injunction. Soon thereafter, County
contractors attempted to enter the Property for tree removal, claiming that the trial
court’s October 25, 2017 order permitted them to do so. Owner refused to allow
them access to the Property, however, insisting that the trial court’s order did not
authorize entry and demanding that they survey and mark the boundary of the road
right-of-way before proceeding. On January 8, 2018, pursuant to the County’s
motion, the trial court modified its October 25, 2017 order, affirmatively authorizing
the County to enter the Property to mark the right-of-way boundary and remove the
trees. Owner appealed the trial court’s modification of its earlier order to this Court.
Eventually, on May 16, 2018, the County entered the Property and completed the
tree removal project, rendering Owner’s appeal moot.2
On March 16, 2018, while her appeal of the trial court’s January 8, 2018 order
was still pending, Owner filed the Petition, alleging that the County had effected a
de facto taking of the Property. (See Reproduced Record (R.R.) at 174a-85a.) In
the Petition, Owner essentially asserted that the County had taken her property—
without filing the proper declaration of taking—by (1) installing the stormwater
facilities on the Property sometime in the past without recording an easement for
those facilities, (2) entering the Property to replace the stormwater facilities and
damaging Owner’s property in the process, and (3) threatening to enter the Property,
outside the road right-of-way, to remove the three trees. (Id. at 181a.) On
June 19, 2018, the trial court issued an order appointing a board of viewers for the
Property.
2
By order dated July 27, 2018, we dismissed that appeal for Owner’s failure to comply
with our order directing her to file a brief in that matter. See Conley v. Cty. of Allegheny
(Pa. Cmwlth., No. 175 C.D. 2018, filed July 27, 2018).
3
The County filed preliminary objections to the Petition and the resulting
appointment of the board of viewers on July 10, 2018. The County contended that
Owner failed to allege facts constituting a de facto taking and had, instead, alleged
only a trespass. (Id. at 189a-91a.) Because the County raised factual issues in its
preliminary objections, the parties engaged in discovery and various status
conferences with the trial court. Ultimately, on April 11, 2019, the trial court held
an evidentiary hearing on the Petition and the factual issues raised in the preliminary
objections.
At the hearing, Owner first presented the testimony of Howard McIlvried, a
surveyor retained by Owner. Mr. McIlvried explained that the stormwater facilities
consist of three storm drain pipes connecting to a storm manhole. He then described
how, based on a plan he prepared (which Owner introduced into evidence at the
hearing), an easement sufficient to contain the renovated stormwater facilities on the
Property would occupy roughly 3,030 square feet. (Id. at 29a.) On
cross-examination, Mr. McIlvried admitted that he did not know the precise
dimensions of the original stormwater facilities installed on the Property. (Id.
at 35a-36a.)
Owner also testified at the hearing. She explained that, when she purchased
the Property in 1997, neither her title insurance policy nor the survey of the Property
indicated the presence of any stormwater facilities or easements. (Id. at 43a-44a.)
Owner described how, despite receiving no confirmation of any particular start date
from the County, she arrived home on August 29, 2017, to find bulldozers, workers,
her hedges removed, and “a big hole in [her] yard.” (Id. at 52a-53a.) Owner stated
that until that point, she had been unaware that there were stormwater pipes on the
Property. She explained that the stormwater facility project lasted from late August
4
to late October, during which time all of her hedges and lawn were turned into a “dirt
area” and “construction materials [were] all over [her] yard.” (Id. at 56a.) In
December 2017, with the Property in the same general condition, County contractors
working on the shoulder of Thompson Run Road dumped a large pile of soil on the
Property, ignoring Owner’s requests that they restore some of the Property first.
(Id. at 57a-58a.) Owner further testified that, even after completing the later tree
removal project in May 2018, the County never replaced her hedges or “fixed” her
yard, and that she “can’t use [the yard]” because of this. (Id. at 68a.) Her mailbox
and the invisible fence were also destroyed and never replaced by the County.
(Id. at 69a, 71a.)
Owner explained that, up to the date of her testimony, her front yard remained
cluttered with pieces of asphalt and other construction debris, unsightly,
embarrassing, and essentially unusable. When Owner endeavored to replace the
mailbox that was destroyed during the County’s work, she did not know where or
how deeply she could excavate without interfering with the stormwater facilities.
(Id. at 69a.) She claimed she cannot plant new trees in a large portion of her front
yard because of the facilities.
On cross-examination, Owner admitted that she became aware of a manhole
in her yard in 1998, shortly after purchasing the Property. (Id. at 74a.) To her
recollection, the manhole was smaller than the replacement installed by the County
in 2017. In 1998, Owner believed the manhole to be related to underground
telephone lines and made no further investigation because no underground facilities
were shown on her title report or survey. (Id.) Owner stated that she suffered only
minor inconvenience due to the manhole while mowing the lawn, and she did not
then perceive any greater interference with her use of the property because she did
5
not know the extent of the underground facilities. (Id. at 75a.) Owner conceded
that, although she has lost the use of her front yard and can no longer entertain guests,
the work performed by the County has not rendered her home uninhabitable, and she
still resides there. (Id. at 78a-84a.) She testified that she is interested in selling her
home and believes she cannot do so without an easement of record for the
stormwater facilities.
The County presented the testimony of Jeanna Fisher, who is employed by the
County as a project manager. Ms. Fisher supervised the Thompson Run Road
improvement project. She explained that Thompson Run Road was first laid out in
the early 20th century through farmland, a portion of which was later subdivided to
create the Property. (Id. at 94a-99a.) She described the history and function of the
stormwater facilities on and around the Property. (Id. at 99a-114a.) Ms. Fisher
further testified that, at Owner’s request, she and other County officials met with
Owner at the Property in July 2017 to discuss the County’s plans for removing the
three trees on the Property. (Id. at 116a.) At that meeting, the officials offered to
plant new trees on the Property further back from the road. They also informed
Owner that they intended to replace the manhole and one of the existing stormwater
pipes on the Property. (Id. at 117a.) When Owner complained at the meeting that
the Property often has stormwater management problems after significant rainfall,
County officials offered to install a new stormwater inlet to alleviate those problems.
(Id. at 118a.) Owner refused this offer because it would require removal of one of
the trees Owner did not wish to have removed. (Id. at 119a.)
On cross-examination, Ms. Fisher stated that she and the County’s engineer
“guessed” that the stormwater facilities were located in an L-shaped area on the
Property. (Id. at 126a.) They did so based on observing the direction of the pipes
6
from inside the manhole, because no easement was ever formally granted by prior
owners or recorded showing the location of the facilities. (Id. at 127a-28a.) The
County did not pursue recording an easement for the facilities when it replaced one
of the pipes in the 1980s because the facilities had already been in place for many
decades at that point. (Id. at 131a.)
Finally, the County presented the testimony of Michael Dillon, who served as
Deputy Director of Public Works for the County at the time of the relevant events.
Mr. Dillon stated that, at the late-July meeting, Owner refused to accept the County’s
offer of replacement trees and installation of an additional stormwater inlet to reduce
flooding. He added, however, that he recalled that meeting occurring after the
County began work on the Property—not before. (Id. at 165a.) Mr. Dillon also
stated that the private contractor conducting the work on the Property remains
obligated under contract to restore the Property as closely as possible to its previous
condition. (Id. at 159a-60a.) Mr. Dillon testified that Owner has refused entry to
the contractor—including by contacting police—on a number of occasions, thus
preventing restoration of the Property. (Id. at 160a.) Mr. Dillon opined that
replacement of the manhole in 2017 did not enlarge the effect of the stormwater
facilities on the use of the Property. (Id. at 163a.) On cross-examination, Mr. Dillon
admitted that he had no personal knowledge of whether Owner had contacted the
police to prevent the County contractor from restoring the Property. He also
confirmed that the Property remains unrestored. (Id. at. 167a-68a.)
Following the hearing, the trial court issued the order that is the subject of this
appeal. In sustaining the County’s preliminary objections, the trial court reasoned
that, because the stormwater facilities had been in place on the Property for so long,
the County was authorized to enter the Property and replace the facilities pursuant
7
to Section 2905 of the Second Class County Code, Act of July 28, 1953, P.L. 723,
as amended, 16 P.S. § 5905, commonly known as the Drains and Ditches Act.
Additionally, the trial court noted that the County had authority to remove the trees
from the road right-of-way. The trial court also observed that the replacement
manhole, while perhaps slightly larger than the original, did not expand the “ground
taken” for maintenance of the stormwater facilities. (Owner’s Br., App. at 4.) The
trial court later expressly concluded that “there was no taking of any property.”
(Id. at 5.)
Additionally, the trial court opined that “a written and recorded easement is
warranted” and that the damage done to the Property during the stormwater facility
replacement could be corrected by repairing Owner’s landscaping. (Id.)
Accordingly, in addition to sustaining the County’s preliminary objections, the trial
court ordered the County to: (1) restore Owner’s landscaping, (2) install an
additional stormwater inlet to reduce flooding on the Property, (3) plant three mature
trees of Owner’s choice on the Property, and (4) prepare a written easement
agreement for the area of the Property occupied by the stormwater facilities.
(Id. at 6-7.)
II. ISSUES
On appeal,3 Owner argues that the trial court erred in concluding that no taking
of the Property occurred. Specifically, Owner argues that the County appropriated
her property in three distinct ways—the initial installation of the stormwater
facilities, entering the Property to replace those facilities in 2017, and use of the
3
In eminent domain matters, our scope of review is limited to determining whether the
trial court committed an error of law or abused its discretion. Lang v. Dep’t of Transp.,
135 A.3d 225, 228 n.8 (Pa. Cmwlth.), appeal denied, 145 A.3d 729 (Pa. 2016).
8
Property for two days to complete the tree removal project.4 We address each of
these bases or theories for Owner’s de facto takings claim below.
In its cross-appeal, the County claims that the trial court abused its discretion
in ordering the County to take the four specific remedial actions listed in the order.
In support, the County argues that, pursuant to the Eminent Domain Code (Code),5
the trial court had authority only to determine whether a taking had occurred and,
once it found no taking, was without jurisdiction to order further relief. The County
also argues that Owner, in the Petition, did not request any of the relief granted.
III. DISCUSSION
Pursuant to Section 502(c)(1) of the Code, a landowner may seek
compensation for a taking of property by asserting “that the owner’s property interest
has been condemned without the filing of a declaration of taking.” 26 Pa.
C.S. § 502(c)(1). This type of taking is known as a de facto taking and is distinct
from a de jure taking, in which the appropriating entity files a declaration of taking.
See In re Crosstown Expressway, 281 A.2d 909, 910 n.1 (Pa. Cmwlth. 1971) (en
banc). “A de facto taking . . . occurs when an entity with eminent domain powers
substantially deprives property owners of the use and enjoyment of their property.”
In re Borough of Blakely, 25 A.3d 458, 464-65 (Pa. Cmwlth. 2011), appeal denied,
37 A.3d 1197 (Pa. 2012). Concerning proof of a de facto taking, we have held:
There is a heavy burden of proof in de facto taking cases.
Specifically, the owner must allege and prove the
following: 1) condemnor has the power to condemn the
land under eminent domain procedures; 2) exceptional
4
In her brief on appeal, Owner also identifies the persistent flooding of her driveway as a
de facto taking by the County. In the Petition, however, Owner described only three bases for her
de facto takings claim (as enumerated above) and made no mention of the flooding issue. (See
R.R. at 181a.) Accordingly, that issue is not before us on appeal.
5
26 Pa. C.S. §§ 101-1106.
9
circumstances have substantially deprived the owner of
the use and enjoyment of the property; and 3) the damages
sustained were the immediate, necessary, and unavoidable
consequences of the exercise of the power of eminent
domain.
Griffith v. Millcreek Twp., 215 A.3d 72, 75 (Pa. Cmwlth. 2019) (citation omitted),
appeal denied, 223 A.3d 660 (Pa. 2020). “Preliminary objections are the exclusive
method under the Code of raising legal and factual objections to a petition for
appointment of viewers that alleges a de facto taking, and the petition may not be
dismissed by the trial court without first conducting an evidentiary hearing to
determine whether a de facto taking has occurred.” Linde Enters., Inc. v.
Lackawanna River Basin Sewer Auth., 911 A.2d 658, 662 (Pa. Cmwlth. 2006).
De facto takings need not—and usually do not—involve actual, physical
taking of property. Takings without a direct physical intrusion, but in which an
entity essentially confiscates property through the exercise of its regulatory or police
powers, are often known as “regulatory takings.” See Lingle v. Chevron U.S.A. Inc.,
544 U.S. 528, 537 (2005); Machipongo Land & Coal Co. v. Cmwlth., 799 A.2d 751,
762 (Pa. 2002) (discussing “regulatory taking cases that do not involve a physical
invasion of private property”). Accordingly, Pennsylvania courts have held that a
physical intrusion into private property is not a necessary condition for a de facto
takings claim. See In re Sansom St. in City of Phila., 143 A. 134, 136 (Pa. 1928)
(holding that “[t]here need not be an actual, physical taking” to require compensation
for a de facto taking); Dep’t of Transp. v. Greenfield Twp.—Prop. Owners,
582 A.2d 41, 44 (Pa. Cmwlth. 1990) (“[W]hen . . . even a non-appropriative act . . .
substantially deprive[s] an owner of . . . his property, a de facto taking will be
deemed to have occurred.”), appeal denied, 593 a.2d 844 (Pa. 1991); Petition of
Borough of Boyertown, 466 A.2d 239, 245 (Pa. Cmwlth. 1983) (“[P]hysical
10
appropriation . . . [is not] required to create a right to eminent domain damages.”)
A taking can, however, be both physical (i.e., not regulatory) and de facto (i.e., not
de jure).6
“[I]rrespective of the police powers rubric, a physical invasion and permanent
occupation of private property . . . is a taking.” In re Opening Private Rd. for Benefit
of O’Reilly, 5 A.3d 246, 257 (Pa. 2010) (O’Reilly) (citing Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 421 (1982) (“[A] physical occupation of
property is a taking.”)). This is true regardless of the size or effect of the permanent,
physical occupation. Mock v. Dep’t of Envtl. Res., 623 A.2d 940, 948 (Pa.
Cmwlth. 1993), aff’d, 667 A.2d 212 (Pa. 1995) (en banc); see also Machipongo Land
& Coal Co., 799 A.2d at 763 (“If a regulation authorizes a physical invasion of
private property, no matter how slight, the U.S. Supreme Court has consistently
concluded that a taking has occurred.”).
A. De Facto Takings Claim
1. Initial Installation of Stormwater Facilities
Owner first claims the County took her property by installing the stormwater
facilities in the first instance, thereby physically occupying and appropriating a
portion of the Property. She argues that the trial court, therefore, erred in failing to
conclude that a taking occurred. The County emphasizes that the initial installation
of the stormwater facilities occurred nearly 100 years ago and was authorized by
6
We have stated this proposition differently in observing that “[a] de facto taking is not
the physical seizure of property.” Adams Outdoor Advert., LP v. Zoning Hearing Bd. of Smithfield
Twp., 909 A.2d 469, 480 (Pa. Cmwlth. 2006) (quoting Visco v. Dep’t of Transp., 498 A.2d 984,
985 (Pa. Cmwlth. 1985)), appeal denied, 923 A.2d 1175 (Pa. 2007). Neither Adams nor Visco
involved a physical appropriation, and neither case can be construed as holding that a physical
appropriation precludes a de facto takings claim. Rather, we simply acknowledged the well-
established rule that a de facto taking is not necessarily (and, indeed, is not usually) the physical
seizure of property.
11
statute at the time. The County argues that any claim of a taking occurring prior to
the 2017 work is barred by the statute of limitations.
The chief disagreement between the parties on this takings theory is whether
the statute of limitations bars Owner’s claim. Owner argued before the trial court—
and the trial court acknowledged—that the County waived the statute of limitations
defense by failing to raise it in the preliminary objections to the Petition. (See R.R.
at 96a.) Owner reiterates this argument on appeal. In response, the County first
claims that it was unaware of the statute of limitations issue when it filed the
preliminary objections because the Petition did not specifically allege any taking
before 2017. The County also claims that, despite its failure to preserve the issue in
the preliminary objections, the County preserved the issue in its later motion in
limine before the trial court.
It is the settled law of de facto condemnation proceedings that the
condemnor’s failure to raise the statute of limitations as a defense in its preliminary
objections waives that defense. In re Mountaintop Area Joint Sanitary Auth.,
166 A.3d 553, 564 (Pa. Cmwlth. 2017). Raising the defense later in the proceedings
(as in the County’s motion in limine) does not cure the waiver. Id. Here, the County
acknowledges that it did not raise the statute of limitations defense in its preliminary
objections. (See County’s Br. at 25 n.10.) The County could have raised the statute
of limitations argument in its preliminary objections because, contrary to the
County’s assertion, the Petition clearly and repeatedly articulates “installation” and
“later replacement” of the stormwater facilities as two distinct bases for the takings
claim. (R.R. at 180a-81a.) We, therefore, agree with Owner and the trial court that
the County has waived the defense of the statute of limitations.
12
Turning to the merits, it is undisputed that the stormwater facilities at issue
were permanently installed by the County or its agents on the Property. The County
admits that it has the power of eminent domain pursuant to Pennsylvania law. (R.R.
at 231a.) Thus, the initial installation of the stormwater facilities on the Property
represented a physical appropriation of a portion of the Property by an entity with
eminent domain power—i.e., a taking—for which just compensation was required.
Pa. Const. art. I, § 10 (“[N]or shall private property be taken or applied to public use,
without authority of law and without just compensation being first made or
secured.”); O’Reilly, 5 A.3d at 257 n.2.
The existence of the taking on this theory does not depend, as the County
asserts, on whether the Property was rendered entirely valueless or uninhabitable,
because any physical appropriation—no matter how slight—is a taking. See Mock,
623 A.2d at 948. The County cites a line of cases where owners alleged de facto
takings of their entire properties based on threatened de jure takings of a portion
thereof. In those cases, we uniformly held that a threatened partial taking of a
residential lot does not render the entire property valueless, as the owners claimed,
because the remainder of the property is usable for residential purposes. See Dep’t
of Transp. v. Steppler, 542 A.2d 175, 178 (Pa. Cmwlth. 1988) (en banc); Dep’t of
Transp. v. Kemp, 515 A.2d 68, 73 (Pa. Cmwlth. 1986), aff’d, 535 A.2d 1051
(Pa. 1988); Dep’t of Transp. v. Smoluk, 514 A.2d 1000, 1002 (Pa. Cmwlth. 1986),
aff’d, 535 A.2d 1051 (Pa. 1988).7 Those cases are inapposite here, however, because
Owner does not claim a total taking, so her residential use of a portion of the Property
7
The Pennsylvania Supreme Court affirmed our decisions in Kemp and Smoluk in a single
per curiam order.
13
is irrelevant.8 Although the stormwater facilities do not prevent use of the Property
in general as a residence, they permanently prevent Owner from using the portions
of the Property they physically occupy. Accordingly, the trial court erred in
concluding that no taking occurred when the County initially installed the
stormwater facilities on the Property.9
Because we conclude that a de facto taking occurred, we will remand this
matter to the trial court for proceedings before a board of viewers. Before reaching
that stage of the proceedings, however, the trial court itself must determine, on
remand, “the condemnation date and the extent and nature of any property interest
condemned.” 26 Pa. C.S. § 502(c)(2) (emphasis added); Szabo v. Dep’t of Transp.,
202 A.3d 52, 64 (Pa. 2019) (remanding “so that the trial court can . . . determine the
property interests affected by the taking, and the board of viewers can determine the
8
The County also cites an unreported decision of this Court in which we stated: “[I]f the
owner can still use his property as a residence . . . , there is no substantial deprivation of the
property’s highest and best use, and, thus[,] no de facto taking.” In re LeFever (Pa. Cmwlth.,
No. 1251 C.D. 2016, filed May 31, 2017), slip op. at 6. First, we note that LeFever, as an
unreported decision, is not binding precedent. See 210 Pa. Code § 69.414(a). Second, the owner
in LeFever, like the owners in the other cases on which the County relies, claimed a taking of the
entire residential property. Accordingly, LeFever, like our earlier line of cases, stands for the
proposition that continued use of a residential property as a residence means that no de facto taking
of the entire property has occurred.
9
The County also suggests that Owner should fail on her initial installation theory because
she did not prove that predecessors in title were never compensated for the alleged taking. It is
not clear what the County is suggesting by this assertion. If the County believes a declaration of
taking was filed previously, it should have objected to Owner’s choice to proceed under
Section 502(c) of the Code, which applies only in the absence of a declaration of taking. If the
County believes compensation was previously paid without a formal taking, it was incumbent on
the County to raise that issue, and Section 502(c) certainly does not require landowners to
investigate the prospect of prior, undocumented payments without any suspicion that they
occurred. In any case, the County should have raised the issue of prior compensation in its
preliminary objections, which it did not do. This objection is, therefore, waived. In re
Mountaintop, 166 A.3d at 564.
14
proper compensation for that property”). The extent of the taking that occurred is a
factual matter for the trial court, because “a board of viewers’ jurisdiction is
statutorily limited to assessing the value of a defined property interest that has been
taken, and does not extend to fact[]finding regarding the . . . extent of the taking
itself.” Szabo, 202 A.3d at 66 (Wecht, J., concurring).
In determining the extent of the taking, we note that the power to condemn is
a grant of power to acquire only that interest in real estate that is “necessary to carry
out the public purposes” of the condemnation, and no more. Cmwlth. v. Renick,
342 A.2d 824, 827 (Pa. Cmwlth. 1975) (en banc). The public purpose here is the
continued function of the stormwater facilities for stormwater management. The
property interest the County necessarily appropriated for that purpose consists of
essentially two parts: (1) a permanent easement allowing the facilities to occupy
portions of the Property and to remain undisturbed by Owner’s use10 (the permanent
easement), and (2) the ongoing right to enter and/or disturb additional portions of
the Property, but only to the extent necessary for access to and continued
maintenance, repair, and replacement of the facilities (the maintenance easement).
The permanent easement is worthless without the maintenance easement, and vice
versa, so both are necessary for the public purpose of the taking. The trial court must
determine the physical extent and effective date of both easements on remand before
the board of viewers can determine the compensation due for those easement
interests.
10
To the extent that the County’s replacement of the manhole enlarged the dimensions of
the stormwater facilities, the extent of the permanent easement would increase accordingly as of
the date of the replacement for purposes of compensation.
15
2. Replacement of Stormwater Facilities
Owner alleges that a second de facto taking occurred when County contractors
entered her Property to replace the existing stormwater facilities. Owner argues that
the County’s entry onto and destruction of her front yard and landscaping
substantially deprived her of the use of that portion of the Property. In response, the
County argues that Owner, rather than pleading the elements of a de facto taking,
has essentially pled a claim for trespass and/or negligence. The County points out
that Owner continues to occupy the residence on the Property and that the damage
is repairable. It argues, therefore, that no substantial deprivation has occurred.
Additionally, the County asserts that no taking occurred because it has statutory
authority to enter the Property and replace the facilities pursuant to the Drains and
Ditches Act.
We first address the County’s counterargument based on the Drains and
Ditches Act. We agree with Owner that the County failed to raise this alleged source
of authority in the preliminary objections. As we have stated many times,
“[p]reliminary objections are the exclusive method under the Code of raising legal
and factual objections to a petition for appointment of viewers that alleges a de facto
taking.” Linde Enters., Inc., 911 A.2d at 662 (emphasis added); accord In re
Mountaintop, 166 A.3d at 564; Genter v. Blair Cty. Convention & Sports Facilities
Auth., 805 A.2d 51 (Pa. Cmwlth. 2002), appeal denied, 825 A.2d 1263 (Pa. 2003);
McGaffic v. Redevelopment Auth. of City of New Castle, 732 A.2d 663 (Pa.
Cmwlth.), appeal denied, 747 A.2d 903 (Pa. 1999); Lehigh-Northampton Airport
Auth. v. WBF Assocs., L.P., 728 A.2d 981 (Pa. Cmwlth.), appeal denied,
747 A.2d 372 (Pa. 1999). The only exception to this general rule is that
supplementary objections may be filed, but only if the landowner files an amended
16
petition. Skokut v. MCI, 613 A.2d 55, 58 (Pa. Cmwlth. 1992). The County’s
argument based on the Drains and Ditches Act purports to present a legal challenge
to the Petition, but the County did not raise the challenge in the preliminary
objections. It is, therefore, waived.11
To the extent that Owner’s facility replacement theory supports a takings
claim, it can do so only with respect to that portion of the Property not already
appropriated by the initial installation of the stormwater facilities (or the permanent
expansion thereof). Owner has, however, alleged entry onto and deprivation of her
entire front yard by the County, and it is clear from the record that the extent of the
disruption to the Property caused by the facility replacement is not limited to the
immediate area occupied by the facilities. Here though, unlike the facilities
themselves, the intrusion onto the Property is only temporary.
It appears that Pennsylvania courts have not yet addressed whether a
temporary physical appropriation of private property by the government is
necessarily a taking.12 On one hand, where an entity with eminent domain power
acquires a temporary construction easement in private property, it typically does so
by filing a declaration of taking. See, e.g., In re Dep’t of Transp., 137 A.3d 666, 667
11
Additionally, we note that the right to compensation for a taking “inheres in the
constitutional prohibition that no one shall be deprived of property for public use without receiving
just compensation therefor.” Petition of H. C. Frick Coke Co., 42 A.2d 532, 534 (Pa. 1945)
(emphasis added). Although “the legislature may prescribe . . . the procedure for the enforcement
of such claims and the periods in which actions therefor must be brought,” statutes—such as the
Drains and Ditches Act—cannot displace the constitutional right to compensation. Id.
12
The U.S. Supreme Court has addressed this issue in the context of federal takings law,
noting that “the Court has recognized few invariable rules in this area.” Arkansas Game & Fish
Comm’n v. United States, 568 U.S. 23, 31 (2012) (ultimately finding taking by United States for
repeated, temporary flooding). The Court reiterated the “bright line[]” rule that “a permanent
physical occupation of property authorized by government is a taking” but distinguished temporary
physical takings as “turn[ing] on situation-specific factual inquiries.” Id. at 31-32.
17
(Pa. Cmwlth. 2016); Luzerne Cty. Flood Prot. Auth. v. Reilly, 825 A.2d 779, 780
(Pa. Cmwlth. 2003); In re Condemnation by Dep’t of Transp. of Right of Way, for
Legislative Route 67045, Section 108 R/W, 455 A.2d 229, 230 (Pa. Cmwlth. 1983).
This suggests that physical appropriation of private property for public construction
can be accomplished only through the eminent domain power and is, therefore, a de
facto taking if accomplished without a declaration of taking.
On the other hand, in the context of regulatory takings, our courts are less
likely to find a taking if the deprivation is only temporary. It is well established that
a landowner may seek compensation for a temporary regulatory taking, but only
after it has exhausted remedies that would invalidate or otherwise offer relief from
the offending regulation; otherwise, we have held, the takings claim is not ripe.
Tobin v. Ctr. Twp., 954 A.2d 741, 748 (Pa. Cmwlth. 2008), appeal denied,
967 A.2d 962 (Pa. 2009). Moreover, our Supreme Court has held that a partial
temporary regulatory taking (i.e., one that denies a landowner only some, but not all,
beneficial use of property for a time) is different in kind from a total temporary
regulatory taking and may not require just compensation. Miller & Son Paving, Inc.
v. Plumstead Twp., Bucks Cty., 717 A.2d 483, 486 (Pa. 1998). Because the law of
eminent domain in this area remains relatively undeveloped, we think it is
particularly important to rely on the standards for de facto takings that are clearly
established, as articulated in Griffith and earlier cases. Those standards incorporate
the “situation-specific factual inquiries” on which temporary physical takings
analysis should turn. Arkansas Game & Fish Comm’n, 568 U.S. at 32.
Applying those standards, we conclude that the Owner has not shown a de
facto taking on the facility replacement theory. As we have discussed, the County
has condemned, through its de facto taking, a maintenance easement allowing access
18
to portions of the Property necessary to repair and replace the stormwater facilities.
Any physical occupation within that easement area with regard to the work
performed on the stormwater facilities, therefore, is not an additional taking. To the
extent that the County may have entered onto the Property beyond the easement area,
in order to constitute a taking, Owner would have to demonstrate that the entry onto
and destruction of her yard was a “necessary . . . and unavoidable consequence[]” of
the County’s restoration project. Griffith, 215 A.3d at 75. The area of the
maintenance easement (as it will be defined by the trial court) theoretically should
encompass any area “necessary” for the restoration project, thus resulting in no entry
onto or disruption of the Property outside the maintenance easement. In theory, it is
possible that the County entered onto and temporarily disrupted areas of her yard
that it did not need to enter or disrupt to perform its work—i.e., areas that were not
within the maintenance easement—but Owner did not advance that argument.
Moreover, the consequences of the County’s actions (outside the permanent
placement of the stormwater facilities) are avoidable, because the County’s presence
on the Property has actually ceased and the remaining damage to the landscaping
can be repaired. The trial court followed a similar analysis in observing at the
hearing that, rather than a taking, the damage to the Property may be “negligence on
the County’s part in not restoring the property the way it should look afterwards.”
(R.R. at 134a.) In other words, based on the allegations in the Petition and the
evidence of record, it is not clear that the physical extent and duration of the
disruption to the Property was an indispensable part of the County’s work on the
Property. Because of this, Owner failed to prove that a de facto taking occurred.
Another implication of the reversible, temporary nature of the deprivation
here is that it essentially renders Owner’s takings claim unripe for disposition.
19
Under the well-developed law of regulatory takings, Owner would need to exhaust
other remedies for that deprivation before bringing a takings claim. Tobin,
954 A.2d at 748. Here, first and foremost, the County represented to the trial court
that it was and is willing to restore Owner’s yard (either through its contractor or
with its own personnel). Indeed, it appears that Owner herself has prevented those
restoration efforts by refusing access to the Property and pursuing this takings claim
instead. Even if the County were not willing to restore the Property, Owner could
pursue another equitable action against the County to compel restoration, or she
could seek damages through an action in trespass. For the foregoing reasons, the
trial court correctly concluded that the County’s entry onto and damage to the
Property during the replacement project was not a de facto taking.
3. Tree Removal
Lastly, Owner asserts that the County’s use of a portion of the Property outside
the road right-of-way during the tree removal project constituted a two-day-long de
facto taking of that portion of the Property. The trial court did not specifically
address this theory, perhaps due to the County’s continued insistence that Owner
should not be permitted to relitigate the propriety of removing the trees, which was
the subject of the equity action before the trial court. As Owner explains, however,
the issue in the equity action—whether the County had authority to remove the trees
at all—is distinct from the County’s temporary use of the Property (outside the
right-of-way) to remove the trees.
Here, we also conclude that Owner has failed to meet the high burden of
proving a de facto taking. Unlike the front yard damage—where Owner testified to
specific, concrete deprivations, such as inability to walk on her front lawn or
entertain guests—Owner has asserted no specific, nonspeculative deprivations
20
resulting from the two-day tree removal project. Instead, she generally stated that
she suffered “a lack of privacy” during those days, without providing any detail.
(R.R. at 9a.) Speculative or conjectural allegations of deprivation are not sufficient
to support a de facto takings claim. Borough of Blakely, 25 A.3d at 467. The record
contains no other, more concrete evidence or assertion of how or to what extent the
County physically occupied or otherwise deprived Owner of the use of the Property
during the tree removal project. The nonspecific and speculative nature of the
asserted deprivation is fatal to Owner’s claim on this theory. The trial court did not,
therefore, err in concluding that Owner showed no taking with respect to the tree
removal project.
B. Equitable Relief
Finally, we address the County’s cross-appeal. The statutory basis of
Owner’s claim is Section 502(c) of the Code, which authorized the trial court
to determine only “whether a condemnation has occurred,” and to proceed beyond
that inquiry only “if the court determines that a condemnation has occurred.”
26 Pa. C.S. § 502(c)(2) (emphasis added). We agree with the County that the trial
court abused its discretion in essentially ordering equitable relief—which, we note,
was not requested in the Petition—after finding that no taking had occurred.
Accordingly, we will reverse that portion of the trial court’s order.
Because we will remand this matter for proceedings before a board of viewers,
we direct the trial court, on remand, to enter an appropriate order concerning the
property taken, as required by the Code. See 26 Pa. C.S. § 502(c)(3)-(4) (“The court
shall enter an order specifying any property interest which has been condemned . . . .
A copy of the order . . . shall be filed by the condemnor in the office of the recorder
21
of deeds . . . .”). That order, once recorded, will satisfy both Owner’s and the
County’s desires for a recorded instrument reflecting the extent of the taking.
IV. CONCLUSION
For the foregoing reasons, the trial court erred in concluding that no de facto
taking occurred with respect to the initial installation (and/or later enlargement) of
the stormwater facilities on the Property to the extent that such facilities
permanently, physically occupy any portion of the Property and require future use
of portions of the Property for maintenance, repair, or replacement. Accordingly,
we will reverse the trial court’s order sustaining the County’s preliminary objections
with respect to that single basis of Owner’s takings claim and remand this matter to
the trial court for further proceedings consistent with this opinion.
With respect to the other two bases of Owner’s claim (temporary use of the
Property for purposes of the facility replacement and tree removal projects), the trial
court did not err in concluding that no taking occurred. We will, therefore, affirm
the trial court’s order sustaining the County’s preliminary objections with respect to
those theories. Finally, we will reverse the portion of the trial court’s order granting
relief to Owner.
P. KEVIN BROBSON, Judge
22
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Catherine A. Conley, an Individual, :
Appellant :
:
v. : No. 642 C.D. 2019
:
County of Allegheny, a Second Class :
County of the Commonwealth of :
Pennsylvania :
:
Catherine A. Conley, an Individual :
:
v. : No. 695 C.D. 2019
:
County of Allegheny, a Second Class :
County of the Commonwealth of :
Pennsylvania, :
Appellant :
ORDER
AND NOW, this 28th day of July, 2020, the order of the Court of Common
Pleas of Allegheny County is hereby AFFIRMED in part and REVERSED in part
in accordance with the accompanying opinion. Further, this matter is REMANDED
to the trial court for proceedings before a board of viewers.
Jurisdiction relinquished.
P. KEVIN BROBSON, Judge