Redevelopment Authority of City of Erie v. Owners or Parties in Interest

Concurring Opinion by

Judge Crumlish, Jr.:

Tbe City of Erie has undertaken to rehabilitate a twelve-block section now known as tbe Downtown Erie Urban Redevelopment Project Area. Tbe parcel of land in question here is a single lot in one of tbe blocks to be affected. Initially, the City bad planned for tbe *397reuse of tbe entire block for transient bousing. Subsequent to tbe approval of tbis plan, tbe City altered its proposals so as to carve out one lot from tbis block for commercial use as a retail store. It is undisputed that tbe purpose in changing tbe permitted reuse was to accommodate tbe relocation of a local business. Exclusive rights to redevelop tbe parcel were accorded tbis businessman, Pulakos, even prior to tbe final reconsideration of tbe permitted redevelopment of tbe block in question.

Tbe majority finds tbis maneuver to evidence palpable bad faith on tbe part of tbe condemnor, Redevelopment Authority of tbe City of Erie. In reaching tbis conclusion, much is made of tbe fact that Pulakos “bad doors open to him”. Tbe activity on tbe part of city officials is characterized as political favoritism for the sole purpose of Pulakos’ personal gain. In essence, it is held that City officials awarded Pulakos tbe exclusive rights to redevelop tbe commercial section purely for private political reasons, thus evidencing palpable bad faith which would not justify tbe use of its power of eminent domain. I cannot agree Avitb that conclusion.

Tbe record does not provide a sufficient basis upon which to support tbe evil motives attributed to the officials of tbe City. Their activity could have been and presumptively is properly motivated by a desire to retain for tbe City a business entity which is desirable in relation to tbe economic well-being of tbe area. It is unwise and unappropriate for tbis Court to castigate tbe motive of tbe governmental servants in Erie absent evidence of improper conduct.

Tbe majority bolds that tbe original public purpose for tbe taking of tbe block in question was for tbe public use of constructing a hotel, and that when tbis reuse was changed so that a parcel could be conveyed to *398Pulakos, the public use was changed to a private use: “Appellants’ property, on December 13, 1968, was not needed for the public purpose of constructing a hotel for the economic and social betterment of the community and, therefore, the benefit of condemnation would accrue only to Pulakos who did not have the right of eminent domain.” Since the power of eminent domain is limited to only “so much property as is necessary for the public use in question. Brest v. Jacksonville Expressway Authority, 194 So. 2d 658 (Fla. 1967), it is concluded that only that part of the block to be used for the hotel is subject to taking.

In reaching this conclusion, the Court has failed to consider the purposes of condemnation as related to the entire twelve-block area to be redeveloped. Instead, it has considered this one block alone to be a condemnation for a continuing public use, like that of a highway, school, etc. I cannot agree that merely because the reuse of this parcel was changed from what might have been a public use to what is now to be a private use, the primary public purposes attendant to redevelopment — the removal of blight and the restoration of the area — would not apply to this parcel as they do the others in the redevelopment area.

The Urban Redevelopment Act of 1945, 35 P.S. 1702, clearly states the purposes which justify condemnation in the twelve-block redevelopment area of Erie: “Therefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to promote the health, safety and welfare of the inhabitants thereof by the creation of bodies corporate and politic to be known as Redevelopment Authorities, which shall exist and operate for the public purposes of the elimination of blighted areas through economically and socially sound redevelopment of such meas, as provided by this Act. . . . Such purposes are hereby declared to be the public *399uses for which, public money may be spent, and private property may be acquired by the exercise of the power of eminent domain. . . .” (Emphasis added).

This was upheld in Belovshy v. Redevelopment Authority of Philadelphia, 357 Pa. 329, 340, 54 A. 2d 277 (1947). “Nothing, of course, is better settled than that property cannot be taken by government without the owner’s consent for the mere purpose of devoting it to the private use of another, even though there be involved in the transaction an incidental benefit to the public. But plaintiff misconceives the nature and extent of the public purpose which is the object of this legislation. That purpose, as before pointed out, is not one requiring a continuing ownership of the property as it is in the case of the Housing Authorities Law in order to carry out the full purpose of that Act, but is directed solely to the clearance, reconstruction and rehabilitation of the blighted area, and after that is accomplished the public purpose is completely realised (Emphasis added).

The Redevelopment Authority can only exercise its power of eminent domain for these purposes, and it was with this intent that the twelve downtown blocks in the redevelopment were to be taken in part. The Authority did not have the authority under the Act to condemn solely for the purpose of building a public building, i.e., a hotel. The public purpose for the condemnation of that block has always been those enumerated in the Act creating that power in the Authority. The change in reuse does not eliminate these purposes.

I agree with the majority that “courts have the responsibility to see that an authority has not acted in bad faith and that property be taken by eminent domain only to the extent reasonably required for the purpose for which the power is exercised; and the case before us is demonstrative of how the refusal of the *400agency to fully consider the reasonable extent of its requirements lends itself to a consideration of what may be called sufficiently “palpable bad faith” to invalidate its taking.

An area should be considered in its entirety and not in its severable parts. Accordingly, the lack of blight in one parcel of a block or the ability of one lot owner to rehabilitate his property would not necessarily render that parcel or lot exempt from a proper condemnation. Crawford v. Redevelopment Authority, 418 Pa. 549, 211 A. 2d 866 (1965); St. Peter’s v. Urban Redevelopment Authority of Pittsburgh, 394 Pa. 194, 146 A. 2d 724 (1958). But in such cases the parcel is usually necessary for the assemblage of lots for a large project, such as the hotel in this case.

Where the property is not the subject of a large reuse project, though, the Legislature has limited the power of eminent domain by providing for “voluntary repair and rehabilitation”. 35 P.S. §1709(b). If the lot in question is only being taken for clearance, reconstruction and rehabilitation without substantial alteration as to its lot size and reuse, the Authority should only take it upon a clear finding that rehabilitation is either not feasible or not requested.

Appellants’ lot would not have been subject to rehabilitation if the prospective hotel reuse had been retained. But when their property was replanned so as to retain its identity and commercial use, rehabilitation became a viable alternative. Appellants requested permission to institute such a project, but the record is clear that the alternative was never seriously considered. The Authority instead gave a reuse preference to Pulakos which excluded any consideration of rehabilitation.

I cannot find that this condemnation was in fact an excessive taking because rehabilitation was appropriate. *401The record does not disclose the feasibility of appellants’ rehabilitation plan. It is evident, however, that the refusal of the Authority to even consider this alternative and their exclusive dealing with Pulaltos regardless of their motivation regarding reuse is irrefutable evidence of palpable bad faith on the part of the condemnor. For this reason, I would reverse.