The Pennsylvania DOT wanted to take a part of the Szabos' property. Fine. But when it filed the declaration of taking, the DOT wasn't as careful as it should have been, and the plans which it submitted with the declaration noted "[s]ome property lines were labeled as 'probable [sic] correct.'"
Good enough for DOT, but not good enough for the Szabos, who hired a surveyor. The survey confirmed that indeed, DOT "misidentified" a part of the Szabo property as belonging to someone else. Thus, DOT's plans "understated the amount of property owned by the Szabos taken as part of the condemnation. Therefore, the Department condemned more of the Szabos' property than the Declaration indicated."
They told the DOT, but it didn't listen. So they sought an evidentiary hearing to determine the nature and extent of the property taken. The trial court said no, and the Szabos appealed.
DOT argued no big deal. Yes, our description wasn't precisely correct, but the Szabos had notice that their property was being condemned. Good enough to meet the statute's requirement for a "reasonable identification" of the property being taken.
In Szabo v. Comm'n of Pennsylvania, No. 2039 CD 2015 (Apr. 12, 2017), the Commonwealth Court disagreed, noting it is "crucial" that plans attached to a declaration of taking "be specific in describing property that it is condemned and how important it is to properly identify that property at the earliest stages of the taking." Slip op. at 5.
Instantly, the parcels in question in this condemnation were marked on the plans filed with the Declaration as belonging to other parties. (R.R. 7a-12a.) Not until a surveyor was engaged was it discovered these parcels were owned by the Szabos and the Szabos were not compensated for the taking of that property. In the Declaration, the Department failed to accurately identify that property which was part of the taking. This failure resulted in a taking of more of the Szabos’ property than indicated in the plans. Therefore, the Department did not provide adequate notice of the extent and effect of the taking.
Slip op. at 5-6.
The court also rejected DOT's argument that it was incumbent on the property owners to object quickly, and their "failure to file preliminary objections raising the inadequacy of the plan attached to the Declaration of Taking to establish the extent or effect of the taking" was a waiver of their rights. The plans listed what property was being taken correctly, it just got the who part wrong. And, DOT argued -- Leo Rosten alert here -- description of the property is so necessary to the eminent domain process that it needs to be decided at the earliest possible stage!
So let's get this straight before we go on: the condemnor -- the party which didn't do the property description carefully enough -- first argued no big deal, only to turn around to argue that the property description is so critical that the condemnee needed to raise problems to avoid prejudice to the condemnor.
The court concluded that yes, preliminary objections to the taking must be made by the property owner within 30 days, but only when the declaration establishes the extent or effect of the taking. Here, DOT "did not adequately identify the property being taken the plans," and "[b]ut for their engagement of a surveyor, the Szabos would not have known the full extent of the taking of their property." Slip op. at 8. That being the case, the owners didn't waive their rights by taking more than 30 days to object. Remanded for an evidentiary hearing.
We don't know what your experience is, but we've seen this scenario a number of times, and in nearly every instance the court gave the condemnor a pass. No big deal. Property owner knew enough. Close enough. "More or less." This is like a regular civil action where a party can freely amend.
But we think the Pennsylvania court got it right -- condemnation is an action to involuntarily deprive someone of ownership, and the condemnee finds herself sued only because she happens to own property the government says it wants. The condemnor should be held to exacting standards because eminent domain statutes are in derogation of the common law and are strictly construed against the taker. After all, in most cases, if a court were to dismiss an action, res judicata would not stop a condemnor from simply correcting its errors and taking the property again, so no harm, no foul, right?
Szabo v. Comm'w of Pennsylvania, No. 2039 CD 2015 (Pa. Comm'w Apr. 12, 2017)
