Bear Creek Township v. Joan H. Riebel, Harold J. Harris, Brian W. Harris and Metropolitan Development Group, Inc.
Under the provisions of the Second Class Township Code, 53 P.S. Section 65101, et seq., a township is given the authority to condemn land for a recreational purpose. The statute provides examples of some types of improvements that can be considered “recreational”; however, the list of examples does not include a public or private school.
In the recent case Bear Creek Township v. Joan H. Riebel, Harold J. Harris, Brian W. Harris and Metropolitan Development Group, Inc., the question arose over whether a municipality can condemn private land for the benefit of a school that would include public recreational areas. The case involved a joint planning effort between Bear Creek Township and the Bear Creek Community Charter School and presented an interesting factual scenario.
Joan H. Riebel, Harold J. Harris and Brian W. Harris (Landowners) owned a 48.86 acre tract of land that was located adjacent to the Bear Creek Community Charter School (Charter School). The Charter School was experiencing some success and it desired to expand its current facilities. After an unsuccessful attempt to acquire the land directly from the Landowners, the Charter School, through the Bear Creek Foundation, approached Bear Creek Township (Township) to discuss the possibility of a plan under which the Township would condemn the property, convey the property to the Charter School to allow for the expansion of the school and develop recreational facilities for Township residents. Public hearings were conducted on the plan, and the intention of the parties to condemn the property for the purpose of building/expanding the Charter School was clearly expressed.
On September 29, 2009, the Township and the Bear Creek Foundation entered into two agreements relating to the property. The first agreement acknowledged that the Township would condemn the 48.86 acre tract and convey the land, in fee simple, to the Bear Creek Foundation. The Foundation agreed to be responsible for all costs associated with the project, including the development of recreational facilities adjacent to the Charter School. The second agreement was entitled “Public Use and Access Agreement,” and it provided the Township residents with access to the recreational facilities, as well as the library and the community room at the Charter School.
On October 5, 2009, the Township filed a Declaration of Taking for the subject property. In response, the Landowners filed Preliminary Objections. Although four objections were raised, the central issue raised by the Landowners was whether the condemnation for the purpose of building a charter school was authorized under the provisions of the Second Class Township Code. Following hearings before the trial court, the court entered an order allowing the Township to amend its Declaration of Taking to specify the statutory references, but overruled all other objections. The Landowners appealed to the Commonwealth Court.
In reviewing the information presented, the Commonwealth Court determined that the dominant reason for the condemnation was to permit the expansion of the Charter School. The court found that the Declaration of Taking and its exhibits contained specific references to the construction of the school. The references to the recreational fields described the fields as being accessory to the school facility even though they would be open to the public. In addition, the court found that the Bear Creek Foundation was the party to initiate the project, not the Township. The testimony of the Township Supervisors indicated that the Township did not identify any need for more recreational facilities until the Foundation approached the Township, and the Township would not have undertaken the project but for the Foundation’s offer to be responsible for all costs. Therefore, the court determined that the condemnation was not done to address a Township need for recreational facilities.
In examining the Second Class Township Code, the court noted that a Township’s power of eminent domain is limited and must be expressly stated. The code does not authorize the taking of private property for the construction of a school. An attempt to validate the taking by referencing the recreational aspects of the property does not overcome the absence of authorization in the code. Accordingly, the Commonwealth Court reversed the decision of the trial court.
This case may only be a preview of the issues to be raised in condemnation proceedings in the future. As municipal and school district budgets become tighter, it is likely that other joint planning efforts will be explored in an attempt to condemn property while complying with the code. As indicated by this case, the key to the validity of any such proceeding will be the true purpose and intent of the condemnation.