The Eminent Domain Code does not prohibit PennDOT from revising or reauthorizing a land acquisition plan in order to extend the time for filing its declaration of taking, the Pennsylvania Commonwealth Court held in In Re: Condemnation by Com., Dept. of Transp., __ A.3d __ (No. 1308 C.D. 2014, filed Jan. 29, 2016). On March 7, 2013, the Secretary of Transportation issued a plan of acquisition (2013 Plan) to acquire 44 properties in Philadelphia as part of a project to improve I-95. The 2013 Plan was recorded on March 27, 2013. On February 27, 2014, the Secretary signed a revised plan (2014 Plan), recorded on March 7, 2014, which purported to revise and reauthorize the 2013 Plan. On April 21, 2014, PennDOT filed a declaration of taking condemning the 44 properties. The owner of four properties, Row-Row, LLC, filed preliminary objections arguing that PennDOT’s declaration of taking was untimely under Section 302(e) of the Eminent Domain Code, 26 Pa. C.S. §302(e), which states that “[t]he 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.” The trial court sustained the objections and, citing In Re: Redevelopment Authority of City of Allentown, 31 A.3d 321 (Pa. Cmwlth. 2011) (Ribbon Works), held that PennDOT could not extend the time for filing its declaration of taking by reauthorizing the 2013 Plan. PennDOT appealed.
An en banc panel of the Commonwealth Court reversed in an opinion authored by Judge Brobson. The 3-2 majority rejected the trial court’s interpretation of Section 302(e) as a statute of limitations, observing that it leads to an absurd result: a condemnor would be required to file all its declarations of taking within one year of its acquisition plan or forever be barred from proceeding with the taking. The Court reasoned that such a result would stifle necessary public improvements. Bolstering the majority’s construction of Section 302(e) is its conclusion that the provision is directory, not mandatory. The Court concluded that “[n]othing in the Administrative Code or the Eminent Domain Code prohibits PennDOT from starting the condemnation process over by its Secretary authorizing a revised plan or the original plan again. Once a revised plan is authorized or an old plan reauthorized, the process starts anew.” Finally, the majority overruled Ribbon Works to the extent that it may be interpreted as holding that the failure of a condemnor to file a declaration of taking within one year of an action authorizing the taking bars the condemnor from condemning the property in the future. Failure to file a declaration of taking within Section 302(e)’s one-year time period results in the original declaration lapsing only if the condemnee has preliminarily objected on that basis.
In a dissenting opinion, Judge Leavitt opined that PennDOT’s declaration of taking was untimely under Section 302(e) and Ribbon Works, which Judge Leavitt would not overrule. In Judge Leavitt’s view, 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. Judge Leavitt would also construe Section 302(e) as a mandatory provision since the Eminent Domain Code is strictly construed. Finally, Judge Leavitt emphasized the countervailing public policy arguments weighing in favor of the condemnees in this case, i.e., “that condemnors should not be allowed to place private property owners in eminent domain limbo by repeatedly reauthorizing plans of acquisition.” Judge McCullough noted her dissent.