The Law

Plot Plans the Heart of a Partial Taking by Michael Blahy When property is being taken by eminent domain, who is responsible for accuracy in the documentation? The Pennsylvania Department of Transportation (PennDOT) developed a plan for an exit ramp off Route 19 to Old Washington Road in McMurry, Pennsylvania. Steven and Mary Szabo (the Szabos) run a hair salon and skin care business on property that they own at 3101 Washington Road. In mid 2012 PennDOT started negotiations with the Szabos to purchase a portion of their property for the project. After six months, they could not come to an agreement. In January, 2013, PennDOT served the Szabos with a declaration of taking for 1.040 acres for the project and 1.729 acres as a temporary construction easement from the 3.128 acres Parcel 5. The plot plan with the declaration also showed Parcels 1 and 9 and listed their owners. The boundary lines were labeled as “probable correct”. The private property lines were marked, but a note advised that they “were not surveyed by the professional land surveyor responsible for the project” and “this property plot is not to be substituted for a boundary survey.” The plot plan showed the portion of the Szabos property to be condemned, but did not show any of Parcels 1 or 9 as having previously being acquired by negotiation or condemnation. A memo with the notice of condemnation indicated that the estimated value of the taken property is $587,000. They have a right to petition the courts for a board of viewers to precisely determine just compensation. Their acceptance of the $587,000 did not jeopardise their right. The memo also indicated that the Szabos had 30 days to file preliminary objections. Since the Szabos had no objection to the taking as depicted on the plan, no preliminary objection was filed, thereby waiving their objection rights. In December, 2013, the Szabos filed a petition for the appointment of viewers and a hearing was set for May 21, 2015 to properly decide on compensation. The Szabos hired a registered surveyor. The surveyor’s plan illustrated that the plan attached to the declaration failed to show the entire Szabos property. The Szabos approached PennDOT requesting changes to the official plan, but PennDOT denied that its information was erroneous. “[D]ue to the issue of fact regarding the extent and nature of the property interest condemned and the owners thereof, an evidentiary hearing . . . to resolve said issue” was requested by the Szabos. The Szabos argued that their claim should not be subject to the waiver since the plan did not show the entirety of their property interests, therefore not illustrating the extent or effect of the condemnation. PennDOT argued that since the issues presented by the Szabos had not been raised by preliminary objection within the required 30 days, the court or the board of viewers had no jurisdiction. In mid August, 2015, the trial court acknowledged that a limited exception exists in the Eminent Domain Code, where the declaration doesn’t give the land owner the true effect and extent of the condemnation, that the issue must be raised by preliminary objections. It said that the Szabos knew what property was being taken, and had no objection to that property being taken, “the facts of this case did not warrant the exception”. The trial court denied the Szabos’ Petition for Evidentiary Hearing. An appeal to the Commonwealth Court was filed by the Szabos to decide: “whether the trial court erred in holding the declaration of taking filed by the Department did not deprive the Szabos of adequate notice of the extent or effect of the taking” “whether the Szabos’ failure to file preliminary objections constituted waiver of their right to raise the inadequacy of the plan attached to the declaration of taking” Addressing the first argument, the Commonwealth Court explained that the condemnor is required to provide written notice of a declaration of taking and the notice “must contain a reasonable identification of the property”. “PennDOT filed plans which illustrated the proposed taking and identified the parties and their affected property interests”. And “the plans incorrectly identified property owned by the Szabos as owned by other parties”. The error was discovered after a surveyor was hired by the Szabos. The Commonwealth Court ruled “PennDOT took from the Szabos more than was indicated in the plans without providing adequate compensation”. As for the second argument, “the Szabos argued that under the trial court’s holding, they, not PennDOT, bore the burden of preparing accurate plans. This would force a condemnee to file preliminary objections in every case regardless of whether a basis existed at the time, so as to avoid waiver”. The Commonwealth Court said that “the courts have recognized that a condemnee does not waive such issues where the declaration of taking does not adequately establish the extent or effect of the taking”. In a unanimous decision, the trial court decision was reversed and remanded for an evidentiary hearing. PennDOT then appealed to the Supreme Court of Pennsylvania, Western District, asking: “By failing to file preliminary objections pursuant to section 306 of the Eminent Domain Code, 26 Pa.C.S. 306, did [Appellees] waive their right to assert ownership and seek additional just compensation for the condemnation of two parcels which were allegedly mistakenly depicted as belonging to two other legal entities in plans attached to the declaration of taking?” “Did [Appellant’s] alleged mistake in the plans attached to a declaration of taking, constitute the failure to adequately establish the extent or effect of the taking, thereby excusing [appellees] from filing preliminary objections under section 306 of the Eminent Domain Code?” The Supreme Court agreed with the Commonwealth Court that “ [t]he plot plans and property plat filed with the declaration of taking and served upon a condemnee are part of and indeed, the heart of a declaration of taking. It is only by reference to such plans that one can determine what property is the subject of condemnation and, in the case of a partial taking, what part of the property has been taken. ” It also agreed “in limited cases, a condemnee who does not file preliminary objections may still be afforded relief when the ‘damage which occurred to the property as a result of the condemnation activity became apparent two years [a]fter the Amended Declaration of Taking was filed,’ or where the condemnees ‘were unaware that their property had been landlocked,’ at the time of declaration and ‘were not parties to the proceeding’ where PennDOT condemned neighboring property to provide access”. PennDOT cited many cases where the condemnee failed to file primary objections where the Commonwealth Court ruled in the condemnor’s favour, even in cases where the condemnee’s property became landlocked. The Szabos conceded that PennDOT provided proper notice of the taking of portions of Parcel 5, but “contend that PennDOT perpetrated a de facto taking of Parcels 1 and 9 when it did not include them in the de jure declaration of taking for Parcel 5 and identified them as being owned by other parties . . . their declaration of taking did not . . . comply with the requirements of Section 305 for Parcels 1 and 9. They note that whether service of a notice of condemnation complied with the explicit requirements of the Code is a pure question of law, and the evidence shows that the declaration of taking filed on January 10, 2013, condemned portions of Parcel 5 only”. The Szabos cited cases where “limitation on owner’s right to claim damages in condemnation cannot begin to run until after the owner has had notice, actual or constructive, that his property has been condemned.” They also argued that property rights are protected by federal and state constitutions and cited cases of their use. The Pennsylvania Supreme Court said: “The Szabos state, and we agree, that PennDOT did not satisfy this requirement when it served a plot plan informing them of the section of property taken from Parcel 5, but not Parcels 1 and 9. The plans provided to the Szabos did not show which portions of Parcels 1 and 9 were to be condemned, and did not identify that land as owned by the Szabos”. “By inadequately identifying the extent or effect of the taking, PennDOT misled the Szabos and denied them an opportunity to secure just compensation. To deny them the opportunity for a hearing would place the burden of identifying condemned property squarely on the shoulders of private landowners and would contradict basic property rights ingrained in our Constitution”. In a five to two decision the Pennsylvania Supreme Court concluded: “We affirm the decision of the Commonwealth Court and remand this matter so that the trial court can hold an evidentiary hearing to determine the property interests affected by the taking, and the board of viewers can determine the proper compensation for that property”. (Szabo v. Commonwealth of Pennsylvania, Dept. of Transportation (Supreme Court of Pennsylvania, Docket: 46 WAP 2017)) Decided: February, 2019 Published: February, 2019 Feature Articles If you have an opinion on the retailing or retail real estate industries, take this opportunity to share your thoughts. Articles should run between 400 and 800 words. Topics can, be general in nature, consumer observation or specific to retail concepts or practices. Articles will be posted for at least one week and will then be placed in the Editorial Archives. All articles submitted will be read and considered but we cannot guarantee publication. 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