The Pennsylvania eminent domain code requires a condemnor to file the declaration of taking within a year of its being authorized:
The condemnor shall file within one year of the action authorizing the declaration of taking a declaration of taking covering all properties included in the authorization not otherwise acquired by the condemnor within this time.
26 Pa. Consol. Stat. § 302(e). Condemning agency gets authorization, and it has a year to file the declaration of taking. We’re not Pennsylvania lawyers, but the cues are there: “shall,” “within one year,” and the like. Seems simple enough.
Not so fast, according to the Pennsylvania Commonwealth Court. In In re Condemnation of Right-of-Way for State Route 0095, Section BSR, No. 1308 CD 2014 (Jan. 29, 2016), the court held that a condemnor can take pretty much as long as it wants, provided it “reauthorizes” the taking before the one-year time expires.
Short story: on March 7, 2013, the PA Secretary of Transportation authorized the taking of 44 parcels in Philadelphia to improve the I-95 interchange off the Betsy Ross Bridge. Things apparently moved slowly because eleven months later, the Secretary “signed a revised plan (2014 Plan), which purported to revise and reauthorize the 2013 Plan.” Slip op. at 2. PennDOT finally got around to filing the declaration of taking On April 1, 2014, more than one year after the initial authorization, but less than a year after the “reauthorized” taking. The property owner objected under section 302(a).
Although the trial court sustained the objection, on appeal the Commonwealth Court reversed. That “within one year” requirement in the statute? No problem: the reauthorized taking restarted the clock, and the trial court should not have considered the time period only from the initial March 7, 2013 authorization, but must have considered the revised-eleven-months-later authorization. We can revise, argued PennDOT, because the “normal course of highway design and engineering” means that we simply can’t do things within one year. Slip op. at 5. Making us do it within a year is crazy, and we all know that legislatures aren’t crazy. We’re paraphrasing, of course, and PennDOT said it much better. See Slip op. at 6-7 (“PennDOT argues that the General Assembly could not have intended to restrict the process of condemnation to one year from the first set of plans drawn, because such a result would be absurd, impossible of execution, unreasonable, and against public interest.”).
That appears to be a classic straw man argument, since the statute isn’t triggered by the “the first set of plans drawn” but rather the “action authorizing the declaration of taking.” So maybe draw your plans, and then formally authorize the taking, guys?
Straw argument #2: The appeals court also held that section 302(e) isn’t a statute of limitations. It doesn’t cut off a cause of action, because a declaration of taking isn’t a cause of action. Slip op. at 8 (“We agree with PennDOT that Section 302(e) of the Eminent Domain Code cannot be interpreted or enforced as though it were a statute of limitations.”). Well, Your Honors, no one was arguing it was a statute of limitations and cut off a cause of action, merely that the legislature gave condemnors one year from authorization to actually file the declaration of taking. And you might see why they did that: otherwise, landowners like the ones here may be subject to an indefinite condemnation cloud created by a taking considered by the condemning agency to be the “normal course of highway design and engineering.”
As for that “shall” language in the statute? Merely directory. So the one-year “requirement” is like the Pirate’s Code, more what you’d call “guidelines” than actual rules:
First, Section 302(e) relates to “timing,” as it requires PennDOT to act within a specified time period, and there is no provision barring condemnation more than one year after its authorization or providing a specific consequence for the untimely filing of a declaration of taking. There is also no provision in the Eminent Domain Code indicating that Section 302(e)’s timeframe is mandatory or that time is of the essence. There is certainly no provision that remotely suggests that the absence of strict compliance with the one-year filing period results in a condemnor forever being barred from proceeding with the condemnation. Second, the purpose of the Eminent Domain Code is to provide the procedure for the exercise of the sovereign’s inherent power to condemn property for public purposes, not to deprive property owners of property. As noted above, the Eminent Domain Code “does not confer or limit the authority to condemn,” and, therefore, the Eminent Domain Code should not be interpreted to deny the sovereign’s inherent power to condemn based on the untimeliness of the filing of a declaration. With regard to its procedures, the Eminent Domain Code provides property owners with notice and an opportunity to dispute the propriety of a taking or the amount to be paid for the property. Strict adherence to the time period for the filing of the declaration of taking is not necessary in order to assure adequate notice of and opportunity to challenge the condemnor’s actions.
Slip op. at 13-14 (footnotes omitted). Forgive us for thinking that the legislature might have adopted the one-year requirement so that property owners were not kept hanging on, potentially forever.
Finally, the court rejected an earlier decision which invalidated a reauthorized taking in which the reauthorization took place after the one-year period expired. In re Redevelopment Authority of City of Allentown, 31 A.3d 321 (Pa. Cmwlth. 2011) (Ribbon Works), That case was different, this court concluded, because the condemnor there took too long to reauthorize the taking, and only did so after a year had passed from authorization. Therefore, unlike here — where the reauthorization was only eleven months out — the condemnor in Ribbon Works blew it, and could not reauthorize a taking that had already expired.
One judge dissented, and concluded that the Ribbon Works rationale should have governed this case also, because condemnors cannot extend the one-year statutory deadline by reauthorizing, either before or after the time period expires:
The Ribbon Works ban on “adopting another resolution” to extend the one-year deadline for filing a declaration of taking does not provide an exception where the second resolution is done before expiration of the one-year time period. Simply, Ribbon Works established that the Secretary’s “reauthorization” constituted an invalid attempt to skirt the directive in Section 302(e) that the “condemnor shall file within one year of the action authorizing the declaration of taking a declaration of taking ….” 26 Pa. C.S. §302(e).
Dissent at 2.
As for the purpose of the statute, the dissenting judge concluded that “[t]he countervailing public policy argument is more persuasive, i.e., that condemnors should not be allowed to place private property owners in eminent domain limbo by repeatedly reauthorizing plans of acquisition.” Dissent at 3. “Eminent domain limbo,” the judge wrote, “is anathema to the real estate market. For this principle, he quoted Professor Kanner (Condemnation Blight: Just How Just is Just Compensation, C730 ALI-ABA 219, 223-25 (ALI 1992).
More on the decision from the Pennsylvania Bar Institute: “PennDOT can Proceed with Condemnation under Reauthorized Acquisition Plan.”