Preliminary Objections and Brief - Lower Merion School District
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Transcript of Preliminary Objections and Brief - Lower Merion School District
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY PENNSYLVANIA
LOWER MERIONSCHOOL DISTICT
vs
NO 2018-29523 BENNETT A JOHN MD
COVER SHEET OF MOVING PARTY
Date of Filing
Moving Party
February 07 2019
NANCE DI ROCCO BENNETT A JOHN MD
Counsel for Moving Party ---------------------------------shy
Document Filed (Specify) CONDEMNEES PRELIMINARY OBJECTIONS
Matter is (Check One) ~ (Appealable) D (Interlocutory)
DiscoveryNeeded ~ (Yes) D (No)
CERTIFICATIONS - Check ONLY if appropriate
Counsel certify that they have conferred in a good faith effort to resolve the subject discovery dispute (Required by Local Rule 2082(e) on motions relating to discovery)
D (Yes) D (No) ~ (NotaDiscoveryMotion)
Counsel for moving party certifies that the subject civil motion is uncontested by all parties involved in the case (If checked skip Rule to Show Cause section below)
By Counsel for Moving Party
RULE TO SHOW CAUSE - Check ONE of the Choice Listed Below
--- Respondent is directed to show cause why the moving party is not entitled to the relief requested by filing
an answer in the form of a written response at the Office of the Prothonotary on or before the ___ dayof ________ ~20
--- Respondent is directed to show cause in the form of a written response why the attached Family
Court Discovery Motion is not entitled to the relief requested Rule Returnable and Argument the ___ day of
_____________ 20 __ at 100 pm at 321 Swede Street Norristown Pa
___ Respondent is directed to file a written response in conformity with the Pennsylvania Rules of Civil Procedure
___ Rule Returnable at time of trial
By Court Administrator
---
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY PENNSYLVANIA
IN RE LOWER MERION SCHOOL EMINENT DOMAIN -IN REM DISTRICT CONDEMNATION OF LAND KNOWN TO BE THE PROPERTY OF NO 2018-29523 CIVIL JOHN A BENNETT MD AND NANCE DI ROCCO KNOWN AS A PORTION OF
COVER SHEET OF MOVING PARTY
Date ofFiling __ __ __ _______ John Bennett and Nance Di Rocco 2 7 _2a0=19 Moving Party
Counsel for Moving Party _M_ic_h_ae_l_F__F_a_he_rtv_ __________ ID No 55860
Document Filed (Specify) Condemnees Preliminary Objections to Declaration of Taking
Matter is X (Appealable) ___ (Interlocutory)
Oral Argument X (Yes) (No) Discovery Needed _X __ (Yes) ___ (No)
CERTIFICATIONS - Check ONLY if appropriate
___ Counsel certify that they have conferred in a good faith effort to resolve the subject discovery dispute (Required by Local Rule 2082(e) on motions relating to discovery)
___ Counsel for moving party certifies that the subject civil motion is uncontested by all parties involved in the case (If checked skip Rule to Show Cause section below)
By Counsel for Moving Party
RULE TO SHOW CAUSE - Check ONE of the Choices Listed Below
___ Respondent is directed to show cause why the moving party is not entitled to the relief requested by filing an answer in the form of a written response at the Office of the Prothonotary on or before the day of 20
___ Respondent is directed to show cause in the form of a written response why the attached Family Court Discovery Motion is not entitled to the relief requested Rule Returnable and Argument the day of 20 at 1 00 pm at 321 Swede Street Norristown Pa
_X __ Respondent is directed to file a written response in conformity with the Pennsylvania Rules of Civil Procedure
Rule Returnable at time of trial
By Court Administrator
912
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY PENNSYLVANIA CIVIL DIVISION
IN RE LOWER MERION SCHOOL DISTRICT CONDEMNATION OF LAND KNOWN TO BE THE PROPERTY OF JOHN EMINENT DOMAIN - IN REM A BENNETT MD AND NANCE DI ROCCO KNOWN AS A PORTION OF TAX NO 2018-29523 CIVIL MAP PARCEL NO 40-00-12868-00-7 LOWER MERION TOWNSHIP MONTGOMERY COUNTY PENNSYLVANIA FOR SCHOOL PURPOSES
ORDER
AND NOW this day of 2019 after reviewing
Condemnees Preliminary Objections Brief in Support and any answer thereto it is hereby
ORDERED that Condernnees Preliminary Objections are SUSTAINED and the condemnation
terminated
IT IS FURTHER ORDERED that title in fee simple is hereby revested in Condernnees
John Bennett and Nance Di Rocco Condernnor shall record this order in the Montgomery County
Recorder of Deeds and said Recorder of Deeds is directed to record this Order among the land
records of Montgomery County Condemnor shall pay the costs of recording and mail a copy of
this recorded order to Condemnees attorney
IT IS FURTHER ORDERED that Condemnor shall reimburse Condemnee for all costs
and expenses including reasonable appraisal attorney and engineering fees and other costs and
expenses actually incurred because of the condemnation proceeding
BY THE COURT
J
2
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY PENNSYLVANIA CIVIL DIVISION
IN RE LOWER MERION SCHOOL DISTRICT CONDEMNATION OF LAND KNOWN TO BE THE PROPERTY OF JOHN EMINENT DOMAIN - IN REM A BENNETT MD AND NANCE DI ROCCO KNOWN AS A PORTION OF TAX NO 2018-29523 CIVIL MAP PARCEL NO 40-00-12868-00-7 LOWER MERION TOWNSHIP MONTGOMERY COUNTY PENNSYLVANIA FOR SCHOOL PURPOSES
CONDEMNEES PRELIMINARY OBJECTIONS TO DECLARATION OF TAKING
AND NOW Condemnees John Bennett MD and Nance Di Rocco by and through their
attorney Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm
hereby file Preliminary Objections to Lower Merion School Districts Declaration of Taking filed
in this matter The preliminary objections contained herein are filed pursuant to the Pennsylvania
Eminent Domain Code 26 Pa CSA sect 306
Preliminary objections are the exclusive method for challenging a condemnation 26 Pa
CSA sect 306(a)(3) In condemnation proceedings preliminary objections serve a different purpose
3
than preliminary objections in a civil action In re a Condemnation Proceeding by South Whitehall
Twp 822 A2d 142 143 (Pa Commw Ct 2003) Per Section 306(a)(3) of the Pennsylvania
Eminent Domain Code preliminary objections in condemnation proceedings are limited to
challenging the following (1) power or right of the condemnor to condemn (2) sufficiency of the
security (3) the declaration of taking or (4) any other procedure followed by the condemnor
Condemnees John Bennett MD and Nance Di Rocco by and through undersigned counsel
hereby assert the following preliminary objections to the condemnation filed in the above-docketed
matter
1 Condemnees own property commonly known as 1835 County Line Road
Villanova Pa 19085 (tax parcel no 40-00-12868-00- 7) (the Property)
2 The Property consists of approximately 106197 acres of land and contains two
buildings
3 In May or June of 2018 Villanova Universitys President Father Peter Donahue
verbally offered to have the University buy the property for $12 million dollars and agreed to have
the proper paperwork drawn-up
4 Lower Merion School District (LMSD) heard that the University was interested
in buying the Property for $12 million dollars
5 On or about June 27 2019 the Superintendent of LMSD Rober L Copeland
reached out to Father Donahue and in an attempt to reduce the purchase price of the Property told
Father Donahue that $12 million dollars is too much for the Property
6 Copeland told Father Donahue that LMSD was interested in buying the Property
from the Condemnees
7 Copeland then told Father Donahue that they valued the Property at $8 million
4
dollars
8 Father Donahue then met with members of his cabinet and trustees who directed
him to get an independent assessment of the value
9 Father Donahue relayed to Condemnees that the University was going to delay their
offer letter because the University was not interested in appearing hostile or trying to block LMSD
especially with all the flair up over Stoneleigh
10 However Father Donahue remained interested pending the assessment of value
11 On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
12 On or about November 7 2018 the University and Condemnees entered into and
executed an agreement of sale with a purchase price of $9650000 Closing was scheduled for
January 4 2019
13 The agreement was contingent upon LMSD not taking the property via eminent
domain
14 LMSD had reached an agreement with the owner of a 56-acre property on Spring
Mill Road that was to be used for fields instead of Condemnees Property
15 On or about December 18 2018 Condemnee John Bennett LMSD real estate agent
Stuart Dessner and Superintendent Robert Copeland met to discuss the status of things
16 They discussed the LMSDs agreement to buy the 56 acre Spring Mill Road
property which the LMSD already agreed to buy and which would serve their recreational needs
adequately
17 Copeland expressed the LMSDs desire to landbank Condemnees property A
landbank is a large body of land held for future development or disposal
5
18 Ultimately if LMSD did not need Condemnees Property and the Spring Mill Road
property Dessner stated that LMSD could always sell it to Villanova University
19 Before ending the meeting Condemnee John Bennett gave Copeland and Dessner a
copy of his Purchase Agreement with Villanova University with the understanding that it would
remain confidential
20 Condemnee also informed Dessner and Copeland that the University would pull-
out of their Agreement of Sale if Condemnees were able to reach an agreement with LMSD
21 Unbeknownst to Condemnees on December 21 2018 (three days after Condemnee
John Bennett gave Dessner and Copeland confidential copies of the Universitys Agreement of
Sale) the School Board convened and passed a Resolution to condemn the Property
22 In a press released published that same day the School Board explained its illegal
intention as an attempt to thwart the purchase of the Property by Villanova University and to
maintain the tax base stating the condemnation will keep the property in use for the residents of
Lower Merion Township and Narbeth rather than enabling Villanova University to take the
property off the tax rolls for its private development use
23 LMSD explained further that although the sellers had indicated the District offers
were basically acceptable with minor revisions the agreements of sale were never returned to the
District
24 President of the Lower Merion Board of School Directors Dr Melissa Gilbert said
Im confident our residents would rather see the land being used by their neighbors than by
college students who dont live in Lower Merion or Narberth
25 The press release also stated that the Property would not actually be needed until
construction began in 2023
6
26 LMSD has no definite plans formulated as to the use to be made of the condemned
property No specifications as to the proposed building have yet been indicated Nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment or any other suitable investigation leading
to an intelligent informed judgment by the Condernnor
27 The Resolution authorized the payment of $9950000 and a lease permitting
Condemnees to reside on and occupy the Property until May 2023 (ie 7pprox 5 years)
28 On December 21 2018 Villanovas Counsel informed Condernnees that LMSD
passed the condemnation Resolution and suggested the agreement of sale be terminated or that
closing be pushed back to January 21 2019 to allow the school district more time to reach an
amicable agreement with Condemnees
29 On December 21 2018 LMSD formally took title to Condemnees Property by
filing a Declaration of Taking in the Montgomery County Court of Common Pleas
30 The Declaration of Taking stated vaguely that the Property was taken for school
district purposes as provide for by the resolution specifically for the purpose of utilizing said land
in conjunction with the construction of school buildings related facilities and necessary
improvements
31 Condernnees later learned the reason for Condernnors quick condemnation
Condemnees present counsel informed them that the Public School Code denies school districts
the right to take by condemnation land belonging to any incorporated institution of learning
such as Villanova University 24 PS sect 7-721 Therefore if Villanova University had closed on
7
the deal on January 4 2019 as planned LMSD would not have been able to condemn the Property
from Villanova University
32 Thus LMSD abused its eminent domain authority by taking advantage of
Condemnee John Bennetts confidential disclosure of his Purchase Agreement with Villanova that
he disclosed in good faith Condemnee John Bennett mistakenly believed LMSD was engaging in
good faith negotiations
33 On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD
attorney Daniel Mita to discuss the case
34 Attorney Mita emphasized to Cohen that if Condemnees did not agree to LMSDs
Purchase Agreement than Condemnees would be left without a lease which meant they would have
to quickly move
35 Attorney Mita emphasized that if the Condemnees did not agree the Condemnees
granddaughter MB who resides with them would not be able to attend LMSD
36 This highlights the hardship eminent domain places upon individuals and their
families and underscores why the abuse of such an awesome power should not be tolerated by this
Court
37 Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 property until May 2023
38 The 1800 West Montgomery Avenue property would provide easy access to the
Condemnees property
39 Also of note is that LMSD terminated the ill-informed Agreement of Sale for the
8
Spring Mill property on January 14 2019 further evidencing the lack of suitable investigation
leading to an intelligent informed judgment by the Condemnor
40 In accordance with Section 306 of the Pennsylvania Eminent Domain Code the
Condemnees file the following preliminary objections to the Condemnors Declaration of Taking
PRELIMINARY OBJECTIONS
THE POWER AND RIGHT TO CONDEMN
41 The Condemnees object to the power or right of LMSD to condemn
42 The power of eminent domain is the power to take property for a public use without
the consent of the owner of the property interest Eminent domain is not conferred by the
constitution It is a right inherent in the state as sovereign and is limited by the constitution In re
Condemnation of 110 Washington Street~ 767 A2d 1154 (Pa Commw Ct 2001) appeal denied
788 A2d 3 79 ( emphasis added) The Pennsylvania Constitution provides nor shall private
property be taken or applied to public use without authority of law and without just compensation
being first made or secured Pa Const art I sect 10 The United States Constitution provides
nor shall private property be taken for public use without just compensation US Const
Amendment V The Fifth Amendments prohibition against the taking of private property for
public use without just compensation applies against the States through the Fourteenth
Amendment Texaco Inc v Short 454 US 516523 n 11 (1982) Webbs Fabulous Pharmacies
_Inc v Beckwith 449 US 155 160 (1908)
43 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute and because the
9
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating an abuse of discretion
Eubling Statute
44 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose but instead was to thwart the sale of the Property to
Villanova from whom LMSD could not legally condemn
45 The legislature may delegate the right to exercise eminent domain power but the
body to which the power is entrusted has no authority beyond that which is legislatively granted
Marple Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Commw Ct 2004)
middotNegotiations
46 The Public School Code permits a school district to condemn property when it
cannot agree on the terms of its purchase with the owner or owners 24 PS sect 7-721
4 7 School directors cannot pass resolutions effecting condemnation until there has
been a failure to agree to terms of purchase with owner of realty selected for school purposes Jury
v Wiest 193 A 5 7 (Pa 1937)
48 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because Condemnor and Condemnee did not disagree on the terms of the
purchase and were still negotiating
10
Not for School Purposes
49 The Public School Code permits LMSD to condemn for school purposes 24 PS
sect 7-721
50 The legislature has provided school district boards of directors with power to
acquire by condemnation real estate it may deem necessary to furnish school buildings or other
suitable sites for proper school purposes 24 PS sect 7-703
51 Our State Supreme Court has directed that a taking may be examined for its true
purpose and not just the purpose as stated in the declaration of taking Middletown Tp V Lands
of Stone 939 A2d 331 (Pa 2007)
52 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because the condemnation was not for school purposes
Fraud Collusion Bad Faith or Arbitran Action Eguatin2 an Abuse of Discretion
53 A Condemnors decision to condemn may be overturned where the record shows
fraud collusion bad faith or arbitrary action equating an abuse of discretion Weber v City
of Philadelphia 262 A2d 297299 (1970)(emphasis added)
54 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Code because the Condemnor s decision to
condemn was the result of fraud collusion bad faith or arbitrary constituting an abuse of
discretion
Suitable Investi2ation Leading to an Intelligent lnfonned Jud2111ent
11
55 Unless the property is acquired after a suitable investigation leading to an
intelligent informed judgment by the condemnor the condemnation is invalid In re Scho Dist
Of Pittsburg 244 A2d 42 46 (Pa 1968) ( citing Winger v Aires 89 A2d 521 (Pa 1952)
56 The Condemnor failed to do a suitable investigation leading to an intelligent
informed judgment by the condemnor because LMSD has no definite plans formulated as to the
use to be made of the condemned property no specifications as to the proposed building have yet
been indicated nor has any definitive location of the tract been designated for the intended
structure no estimate of construction is yet available no wetlands study has been completed nor
a final development plan a final architectural plan a final engineering plan proper zoning
approval a thorough needs assessment nor any other due diligence measures
ExcessiveUnnecessary Taking
57 Condemnor may not appropriate a greater amount of property than is reasonably
required for contemplated purpose Aweal ofWaite 641 A2d 25 (Pa Commw Ct 1994)
58 A condemnation may be overturned if it is found to be excessive Estate of Rochez
by Goslin 558 A2d 605 (Pa Commw Ct 1989) amended on reconsideration 566 A2d 631 (Pa
Commw Ct 1989)
59 The taking is excessiveunnecessary because the Condemnor only asserted a need
for 56 acres for fields originally whereas the Condemnees property is 106 acres
Future Use Within a Reasonable Time
60 Land may be condemned for future expansion even if it cannot presently be used
for the purposes stated in the declaration of taking as long as the land will in good faith be necessary
12
for future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324
(Pa Commw Ct 1977)
61 Condemnees property is not needed for a future use within a reasonable time
because Condemnor is leasing the property back to Condemnee for 5 years and is based on
assumptions and possibilities that have not been proven by the evidence
RELIEF REQUESTED
62 Pursuant to the Pennsylvania Eminent Domain Code the court shall determine
promptly all preliminary objections and make preliminary and final orders and decrees as justice
shall require including the revesting of title 26 Pa CSA sect 306 (f)(l)
63 Moreover ifan issue of fact is raised the court shall take evidence by depositions
or otherwise 26 Pa CSA sect 306 (f)(2)
64 When preliminary objections raise an issue of fact the court must hold an
evidentiary hearing 26 Pa CSA sect 306(f)(2) Ameal ofMcKonly 618 A2d 1169 (Pa Commw
Ct 1992)
65 The Condemnees have raised issues of fact in these Preliminary Objections
66 Discovery and an evidentiary hearing are required
67 Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
68 The termination of condemnation
69 Revesting of title in the name of John Bennett MD and Nance Di Rocco
70 The reimbursement of costs and expenses to Condemnee by Condemnor including
13
reasonable appraisal attorney and engineering fees and other costs and expenses actually incurred
because of the condemnation proceedings 26 Pa CSA sect 306(g)
71 Condemnees file concurrently herewith a Brief in Support per local rule 1028( c)
and incorporate it herein by reference
WHEREFORE for the reasons stated above Condemnees respectfully submit these
preliminary objections and request that the Court grant the reliefrequested above
Respectfully submitted
FAHERTY LAW FIRM
Dated February 7 2019
Michael F Faherty Esquire Atty Id 55860 mfaherty(fahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000 Counsel for Condemnees
14
CERTIFICATE OF SERVICE
I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing
document filed on February _J_ 2019 was sent to the following individuals via first class mail
on February _7_ 2019
Drew K Kapur Esq ID No 35018 Duane Morris LLP 30 South 17th Street Philadelphia PA 19103-4196 dkkapurduanemorriscom 215-979-1000 Attorney for Condemnor
Michael F Faherty Esq Bar ID 55860 Anthony M Corby Esq Bar ID 316852 75 Cedar Ave Hershey PA 17033 717-256-3000 mfahertvfahertylawfinncom acorbyfabertylawfirmco Attorney for Condemnees
15
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6(1) o C g ~ CERTIFICATE OF COMPLIANCE 00 0 g il tJ I certify that this filing complies with the provisions of the Public Access Policy of the ~i 0 C
~g Un(fied Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that 111
-g E 0 e ~ require filing confidential information and documents differently than non-confidential
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sect~ s -~ t Respectfully submitted ci ejg
~~ FAHERTY LAW FIRM secti ~ liE
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osect ~ ~ IN THE COURT OF COMMON PLEAS OF MONTGOMERY sect ~ CIVIL DIVISION s II)
- ~ ci ~ i IN RE LOWER MERION SCHOOL sect~ DISTRICT CONDEMNATION OF LAND Ii E KNOWN TO BE THE PROPERTY OF JOHN -~
pound g A BENNETT MD AND NANCE DI j ~ ROCCO KNOWN AS A PORTION OF TAX i II) Ill
~ MAP PARCEL NO 40-00-12868-00-7 ~ ~ LOWER MERION TOWNSHIP ~ ~ MONTGOMERY COUNTY ~ j PENNSYLVANIA FOR SCHOOL o ~ PURPOSES ~g ~sect II 0
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~ middot CONDEMNEES BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS TO ~ ~ DECLARATION OF TAKING O)~ -0 II)
~ 5 Condemnees John Bennett MD and Nance Di Rocco by and through their attorney ~8 ~~ o ic Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm hereby ~-g l Ill
sect ~ submit this Brief in Support of Preliminary Objections to the Declaration of Taking The SQgt e ci o~ ~ (I) Preliminary Objections are sectpound 8o ~~ CSA sect 306 (I)
e8
W~ ~ _u l3
COUNTY PENNSYLVANIA
EMINENT DOMAIN - IN REM
middot NO 2018-29523 CIVIL
fi 1led pursuant to the Pennsylvania Eminent Domain Code 26 Pa
MATTER BEFORE THE COURT
~ - 1 Pleading Before the Court Condemnee s Preliminary Objections to Declaration of li ~~
8 0~
~ Taking ff ~o g E 2 Relief Requested ~Jg ClO Igt s ~~ 1 =It - Bl -a
~~
a Discovery and an evidentiary hearing
b Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
c The termination of condemnation
d Revesting of title in the name of John Bennett MD and Nance Di Rocco
e The reimbursement of costs and expenses to Condemnee by Condemnor including
reasonable appraisal attorney and engineering fees and other costs and expenses
actually incurred because of the condemnation proceedings 26 Pa CSA sect 306(g)
STATEMENT OF QUESTIONS INVOLVED
Question 1 Whether Lower Merion School District has the power and right to condemn
Condemnees property when the enabling Statute does not grant Condemnor the right to use
eminent domain and when the Condemnors decision to condemn was done in bad faith and was
arbitrary action equating an abuse of discretion
Suggested Answer No
FACTS
Condemnees own property commonly known as 1835 County Line Road Villanova Pa
19085 (tax parcel no 40-00-12868-00- 7) (the Property) The Property consists of approximately
106197 acres of land and contains two buildings The main building is an approximately 20000
sq ft mansion built in 1920 The second building is approximately 3000 sq ft and built in
approximately 2015 The land is situated next to Villanova University Condemnees purchased the
2
Property in 1997 and have resided there ever since Also currently residing at the property is the
Condemnees minor granddaughter MB
During this time Condemnees became close friends with Villanovas President Father
Peter Donahue Condemnees have hosted various University events at their home over the years
During this time Father Donahue conveyed the Universitys interest in purchasing the Property
Condemnees liked the idea of their property going to the University and always felt that someday
when they were ready to sell that they would sell it to the University Sometime around May of
2018 the Condemnees were contacted by real estate agent Stuart Dessner who relayed that the
Lower Merion School District (LMSD) might be interested in buying their property and their
neighbors property Preferring to sell to the University and knowing that Father Donahue always
wanted the University to have the Property Condemnees approached him and asked if the
University would be interested in buying the Property Father Donahue verbally offered $12
million dollars for the Property on behalf of the University and agreed to have the proper
paperwork drawn-up The University intended to maintain the historic buildings utilizing it in a
way that would not involve razing the property
LMSD learned that the University was interested in buying the Property for $12 million
dollars On or about June 27 2019 the Superintendent ofLMSD Rober L Copeland reached out
to Father Donahue and in an attempt to reduce the purchase price of the Property told Father
Donahue that $12 million dollars is too much for the Property Exhibit 1 Copeland told Father
Donahue that LMSD was interested in buying the Property from the Condemnees Id He wanted
to know how interested Villanova was in purchasing the property and how much Villanova would
be willing to pay Id Copeland then told Father Donahue that they valued the Property at $8 million
dollars Id Father Donahue then met with members of his cabinet and trustees who directed him
3
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
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6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
~~
acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
~ lll Anthony M Corby Esq C
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
---
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY PENNSYLVANIA
IN RE LOWER MERION SCHOOL EMINENT DOMAIN -IN REM DISTRICT CONDEMNATION OF LAND KNOWN TO BE THE PROPERTY OF NO 2018-29523 CIVIL JOHN A BENNETT MD AND NANCE DI ROCCO KNOWN AS A PORTION OF
COVER SHEET OF MOVING PARTY
Date ofFiling __ __ __ _______ John Bennett and Nance Di Rocco 2 7 _2a0=19 Moving Party
Counsel for Moving Party _M_ic_h_ae_l_F__F_a_he_rtv_ __________ ID No 55860
Document Filed (Specify) Condemnees Preliminary Objections to Declaration of Taking
Matter is X (Appealable) ___ (Interlocutory)
Oral Argument X (Yes) (No) Discovery Needed _X __ (Yes) ___ (No)
CERTIFICATIONS - Check ONLY if appropriate
___ Counsel certify that they have conferred in a good faith effort to resolve the subject discovery dispute (Required by Local Rule 2082(e) on motions relating to discovery)
___ Counsel for moving party certifies that the subject civil motion is uncontested by all parties involved in the case (If checked skip Rule to Show Cause section below)
By Counsel for Moving Party
RULE TO SHOW CAUSE - Check ONE of the Choices Listed Below
___ Respondent is directed to show cause why the moving party is not entitled to the relief requested by filing an answer in the form of a written response at the Office of the Prothonotary on or before the day of 20
___ Respondent is directed to show cause in the form of a written response why the attached Family Court Discovery Motion is not entitled to the relief requested Rule Returnable and Argument the day of 20 at 1 00 pm at 321 Swede Street Norristown Pa
_X __ Respondent is directed to file a written response in conformity with the Pennsylvania Rules of Civil Procedure
Rule Returnable at time of trial
By Court Administrator
912
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY PENNSYLVANIA CIVIL DIVISION
IN RE LOWER MERION SCHOOL DISTRICT CONDEMNATION OF LAND KNOWN TO BE THE PROPERTY OF JOHN EMINENT DOMAIN - IN REM A BENNETT MD AND NANCE DI ROCCO KNOWN AS A PORTION OF TAX NO 2018-29523 CIVIL MAP PARCEL NO 40-00-12868-00-7 LOWER MERION TOWNSHIP MONTGOMERY COUNTY PENNSYLVANIA FOR SCHOOL PURPOSES
ORDER
AND NOW this day of 2019 after reviewing
Condemnees Preliminary Objections Brief in Support and any answer thereto it is hereby
ORDERED that Condernnees Preliminary Objections are SUSTAINED and the condemnation
terminated
IT IS FURTHER ORDERED that title in fee simple is hereby revested in Condernnees
John Bennett and Nance Di Rocco Condernnor shall record this order in the Montgomery County
Recorder of Deeds and said Recorder of Deeds is directed to record this Order among the land
records of Montgomery County Condemnor shall pay the costs of recording and mail a copy of
this recorded order to Condemnees attorney
IT IS FURTHER ORDERED that Condemnor shall reimburse Condemnee for all costs
and expenses including reasonable appraisal attorney and engineering fees and other costs and
expenses actually incurred because of the condemnation proceeding
BY THE COURT
J
2
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY PENNSYLVANIA CIVIL DIVISION
IN RE LOWER MERION SCHOOL DISTRICT CONDEMNATION OF LAND KNOWN TO BE THE PROPERTY OF JOHN EMINENT DOMAIN - IN REM A BENNETT MD AND NANCE DI ROCCO KNOWN AS A PORTION OF TAX NO 2018-29523 CIVIL MAP PARCEL NO 40-00-12868-00-7 LOWER MERION TOWNSHIP MONTGOMERY COUNTY PENNSYLVANIA FOR SCHOOL PURPOSES
CONDEMNEES PRELIMINARY OBJECTIONS TO DECLARATION OF TAKING
AND NOW Condemnees John Bennett MD and Nance Di Rocco by and through their
attorney Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm
hereby file Preliminary Objections to Lower Merion School Districts Declaration of Taking filed
in this matter The preliminary objections contained herein are filed pursuant to the Pennsylvania
Eminent Domain Code 26 Pa CSA sect 306
Preliminary objections are the exclusive method for challenging a condemnation 26 Pa
CSA sect 306(a)(3) In condemnation proceedings preliminary objections serve a different purpose
3
than preliminary objections in a civil action In re a Condemnation Proceeding by South Whitehall
Twp 822 A2d 142 143 (Pa Commw Ct 2003) Per Section 306(a)(3) of the Pennsylvania
Eminent Domain Code preliminary objections in condemnation proceedings are limited to
challenging the following (1) power or right of the condemnor to condemn (2) sufficiency of the
security (3) the declaration of taking or (4) any other procedure followed by the condemnor
Condemnees John Bennett MD and Nance Di Rocco by and through undersigned counsel
hereby assert the following preliminary objections to the condemnation filed in the above-docketed
matter
1 Condemnees own property commonly known as 1835 County Line Road
Villanova Pa 19085 (tax parcel no 40-00-12868-00- 7) (the Property)
2 The Property consists of approximately 106197 acres of land and contains two
buildings
3 In May or June of 2018 Villanova Universitys President Father Peter Donahue
verbally offered to have the University buy the property for $12 million dollars and agreed to have
the proper paperwork drawn-up
4 Lower Merion School District (LMSD) heard that the University was interested
in buying the Property for $12 million dollars
5 On or about June 27 2019 the Superintendent of LMSD Rober L Copeland
reached out to Father Donahue and in an attempt to reduce the purchase price of the Property told
Father Donahue that $12 million dollars is too much for the Property
6 Copeland told Father Donahue that LMSD was interested in buying the Property
from the Condemnees
7 Copeland then told Father Donahue that they valued the Property at $8 million
4
dollars
8 Father Donahue then met with members of his cabinet and trustees who directed
him to get an independent assessment of the value
9 Father Donahue relayed to Condemnees that the University was going to delay their
offer letter because the University was not interested in appearing hostile or trying to block LMSD
especially with all the flair up over Stoneleigh
10 However Father Donahue remained interested pending the assessment of value
11 On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
12 On or about November 7 2018 the University and Condemnees entered into and
executed an agreement of sale with a purchase price of $9650000 Closing was scheduled for
January 4 2019
13 The agreement was contingent upon LMSD not taking the property via eminent
domain
14 LMSD had reached an agreement with the owner of a 56-acre property on Spring
Mill Road that was to be used for fields instead of Condemnees Property
15 On or about December 18 2018 Condemnee John Bennett LMSD real estate agent
Stuart Dessner and Superintendent Robert Copeland met to discuss the status of things
16 They discussed the LMSDs agreement to buy the 56 acre Spring Mill Road
property which the LMSD already agreed to buy and which would serve their recreational needs
adequately
17 Copeland expressed the LMSDs desire to landbank Condemnees property A
landbank is a large body of land held for future development or disposal
5
18 Ultimately if LMSD did not need Condemnees Property and the Spring Mill Road
property Dessner stated that LMSD could always sell it to Villanova University
19 Before ending the meeting Condemnee John Bennett gave Copeland and Dessner a
copy of his Purchase Agreement with Villanova University with the understanding that it would
remain confidential
20 Condemnee also informed Dessner and Copeland that the University would pull-
out of their Agreement of Sale if Condemnees were able to reach an agreement with LMSD
21 Unbeknownst to Condemnees on December 21 2018 (three days after Condemnee
John Bennett gave Dessner and Copeland confidential copies of the Universitys Agreement of
Sale) the School Board convened and passed a Resolution to condemn the Property
22 In a press released published that same day the School Board explained its illegal
intention as an attempt to thwart the purchase of the Property by Villanova University and to
maintain the tax base stating the condemnation will keep the property in use for the residents of
Lower Merion Township and Narbeth rather than enabling Villanova University to take the
property off the tax rolls for its private development use
23 LMSD explained further that although the sellers had indicated the District offers
were basically acceptable with minor revisions the agreements of sale were never returned to the
District
24 President of the Lower Merion Board of School Directors Dr Melissa Gilbert said
Im confident our residents would rather see the land being used by their neighbors than by
college students who dont live in Lower Merion or Narberth
25 The press release also stated that the Property would not actually be needed until
construction began in 2023
6
26 LMSD has no definite plans formulated as to the use to be made of the condemned
property No specifications as to the proposed building have yet been indicated Nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment or any other suitable investigation leading
to an intelligent informed judgment by the Condernnor
27 The Resolution authorized the payment of $9950000 and a lease permitting
Condemnees to reside on and occupy the Property until May 2023 (ie 7pprox 5 years)
28 On December 21 2018 Villanovas Counsel informed Condernnees that LMSD
passed the condemnation Resolution and suggested the agreement of sale be terminated or that
closing be pushed back to January 21 2019 to allow the school district more time to reach an
amicable agreement with Condemnees
29 On December 21 2018 LMSD formally took title to Condemnees Property by
filing a Declaration of Taking in the Montgomery County Court of Common Pleas
30 The Declaration of Taking stated vaguely that the Property was taken for school
district purposes as provide for by the resolution specifically for the purpose of utilizing said land
in conjunction with the construction of school buildings related facilities and necessary
improvements
31 Condernnees later learned the reason for Condernnors quick condemnation
Condemnees present counsel informed them that the Public School Code denies school districts
the right to take by condemnation land belonging to any incorporated institution of learning
such as Villanova University 24 PS sect 7-721 Therefore if Villanova University had closed on
7
the deal on January 4 2019 as planned LMSD would not have been able to condemn the Property
from Villanova University
32 Thus LMSD abused its eminent domain authority by taking advantage of
Condemnee John Bennetts confidential disclosure of his Purchase Agreement with Villanova that
he disclosed in good faith Condemnee John Bennett mistakenly believed LMSD was engaging in
good faith negotiations
33 On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD
attorney Daniel Mita to discuss the case
34 Attorney Mita emphasized to Cohen that if Condemnees did not agree to LMSDs
Purchase Agreement than Condemnees would be left without a lease which meant they would have
to quickly move
35 Attorney Mita emphasized that if the Condemnees did not agree the Condemnees
granddaughter MB who resides with them would not be able to attend LMSD
36 This highlights the hardship eminent domain places upon individuals and their
families and underscores why the abuse of such an awesome power should not be tolerated by this
Court
37 Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 property until May 2023
38 The 1800 West Montgomery Avenue property would provide easy access to the
Condemnees property
39 Also of note is that LMSD terminated the ill-informed Agreement of Sale for the
8
Spring Mill property on January 14 2019 further evidencing the lack of suitable investigation
leading to an intelligent informed judgment by the Condemnor
40 In accordance with Section 306 of the Pennsylvania Eminent Domain Code the
Condemnees file the following preliminary objections to the Condemnors Declaration of Taking
PRELIMINARY OBJECTIONS
THE POWER AND RIGHT TO CONDEMN
41 The Condemnees object to the power or right of LMSD to condemn
42 The power of eminent domain is the power to take property for a public use without
the consent of the owner of the property interest Eminent domain is not conferred by the
constitution It is a right inherent in the state as sovereign and is limited by the constitution In re
Condemnation of 110 Washington Street~ 767 A2d 1154 (Pa Commw Ct 2001) appeal denied
788 A2d 3 79 ( emphasis added) The Pennsylvania Constitution provides nor shall private
property be taken or applied to public use without authority of law and without just compensation
being first made or secured Pa Const art I sect 10 The United States Constitution provides
nor shall private property be taken for public use without just compensation US Const
Amendment V The Fifth Amendments prohibition against the taking of private property for
public use without just compensation applies against the States through the Fourteenth
Amendment Texaco Inc v Short 454 US 516523 n 11 (1982) Webbs Fabulous Pharmacies
_Inc v Beckwith 449 US 155 160 (1908)
43 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute and because the
9
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating an abuse of discretion
Eubling Statute
44 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose but instead was to thwart the sale of the Property to
Villanova from whom LMSD could not legally condemn
45 The legislature may delegate the right to exercise eminent domain power but the
body to which the power is entrusted has no authority beyond that which is legislatively granted
Marple Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Commw Ct 2004)
middotNegotiations
46 The Public School Code permits a school district to condemn property when it
cannot agree on the terms of its purchase with the owner or owners 24 PS sect 7-721
4 7 School directors cannot pass resolutions effecting condemnation until there has
been a failure to agree to terms of purchase with owner of realty selected for school purposes Jury
v Wiest 193 A 5 7 (Pa 1937)
48 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because Condemnor and Condemnee did not disagree on the terms of the
purchase and were still negotiating
10
Not for School Purposes
49 The Public School Code permits LMSD to condemn for school purposes 24 PS
sect 7-721
50 The legislature has provided school district boards of directors with power to
acquire by condemnation real estate it may deem necessary to furnish school buildings or other
suitable sites for proper school purposes 24 PS sect 7-703
51 Our State Supreme Court has directed that a taking may be examined for its true
purpose and not just the purpose as stated in the declaration of taking Middletown Tp V Lands
of Stone 939 A2d 331 (Pa 2007)
52 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because the condemnation was not for school purposes
Fraud Collusion Bad Faith or Arbitran Action Eguatin2 an Abuse of Discretion
53 A Condemnors decision to condemn may be overturned where the record shows
fraud collusion bad faith or arbitrary action equating an abuse of discretion Weber v City
of Philadelphia 262 A2d 297299 (1970)(emphasis added)
54 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Code because the Condemnor s decision to
condemn was the result of fraud collusion bad faith or arbitrary constituting an abuse of
discretion
Suitable Investi2ation Leading to an Intelligent lnfonned Jud2111ent
11
55 Unless the property is acquired after a suitable investigation leading to an
intelligent informed judgment by the condemnor the condemnation is invalid In re Scho Dist
Of Pittsburg 244 A2d 42 46 (Pa 1968) ( citing Winger v Aires 89 A2d 521 (Pa 1952)
56 The Condemnor failed to do a suitable investigation leading to an intelligent
informed judgment by the condemnor because LMSD has no definite plans formulated as to the
use to be made of the condemned property no specifications as to the proposed building have yet
been indicated nor has any definitive location of the tract been designated for the intended
structure no estimate of construction is yet available no wetlands study has been completed nor
a final development plan a final architectural plan a final engineering plan proper zoning
approval a thorough needs assessment nor any other due diligence measures
ExcessiveUnnecessary Taking
57 Condemnor may not appropriate a greater amount of property than is reasonably
required for contemplated purpose Aweal ofWaite 641 A2d 25 (Pa Commw Ct 1994)
58 A condemnation may be overturned if it is found to be excessive Estate of Rochez
by Goslin 558 A2d 605 (Pa Commw Ct 1989) amended on reconsideration 566 A2d 631 (Pa
Commw Ct 1989)
59 The taking is excessiveunnecessary because the Condemnor only asserted a need
for 56 acres for fields originally whereas the Condemnees property is 106 acres
Future Use Within a Reasonable Time
60 Land may be condemned for future expansion even if it cannot presently be used
for the purposes stated in the declaration of taking as long as the land will in good faith be necessary
12
for future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324
(Pa Commw Ct 1977)
61 Condemnees property is not needed for a future use within a reasonable time
because Condemnor is leasing the property back to Condemnee for 5 years and is based on
assumptions and possibilities that have not been proven by the evidence
RELIEF REQUESTED
62 Pursuant to the Pennsylvania Eminent Domain Code the court shall determine
promptly all preliminary objections and make preliminary and final orders and decrees as justice
shall require including the revesting of title 26 Pa CSA sect 306 (f)(l)
63 Moreover ifan issue of fact is raised the court shall take evidence by depositions
or otherwise 26 Pa CSA sect 306 (f)(2)
64 When preliminary objections raise an issue of fact the court must hold an
evidentiary hearing 26 Pa CSA sect 306(f)(2) Ameal ofMcKonly 618 A2d 1169 (Pa Commw
Ct 1992)
65 The Condemnees have raised issues of fact in these Preliminary Objections
66 Discovery and an evidentiary hearing are required
67 Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
68 The termination of condemnation
69 Revesting of title in the name of John Bennett MD and Nance Di Rocco
70 The reimbursement of costs and expenses to Condemnee by Condemnor including
13
reasonable appraisal attorney and engineering fees and other costs and expenses actually incurred
because of the condemnation proceedings 26 Pa CSA sect 306(g)
71 Condemnees file concurrently herewith a Brief in Support per local rule 1028( c)
and incorporate it herein by reference
WHEREFORE for the reasons stated above Condemnees respectfully submit these
preliminary objections and request that the Court grant the reliefrequested above
Respectfully submitted
FAHERTY LAW FIRM
Dated February 7 2019
Michael F Faherty Esquire Atty Id 55860 mfaherty(fahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000 Counsel for Condemnees
14
CERTIFICATE OF SERVICE
I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing
document filed on February _J_ 2019 was sent to the following individuals via first class mail
on February _7_ 2019
Drew K Kapur Esq ID No 35018 Duane Morris LLP 30 South 17th Street Philadelphia PA 19103-4196 dkkapurduanemorriscom 215-979-1000 Attorney for Condemnor
Michael F Faherty Esq Bar ID 55860 Anthony M Corby Esq Bar ID 316852 75 Cedar Ave Hershey PA 17033 717-256-3000 mfahertvfahertylawfinncom acorbyfabertylawfirmco Attorney for Condemnees
15
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6(1) o C g ~ CERTIFICATE OF COMPLIANCE 00 0 g il tJ I certify that this filing complies with the provisions of the Public Access Policy of the ~i 0 C
~g Un(fied Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that 111
-g E 0 e ~ require filing confidential information and documents differently than non-confidential
~ ~ middot12 g information and documents -~ sect s e 0
osect (I) C S C
sect~ s -~ t Respectfully submitted ci ejg
~~ FAHERTY LAW FIRM secti ~ liE
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i ~ Michael F Faherty Esquire ~ ~ Attorney Id 55860 ~ ~ 7 5 Cedar A venue ~ j Hershey Pennsylvania 17033
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osect ~ ~ IN THE COURT OF COMMON PLEAS OF MONTGOMERY sect ~ CIVIL DIVISION s II)
- ~ ci ~ i IN RE LOWER MERION SCHOOL sect~ DISTRICT CONDEMNATION OF LAND Ii E KNOWN TO BE THE PROPERTY OF JOHN -~
pound g A BENNETT MD AND NANCE DI j ~ ROCCO KNOWN AS A PORTION OF TAX i II) Ill
~ MAP PARCEL NO 40-00-12868-00-7 ~ ~ LOWER MERION TOWNSHIP ~ ~ MONTGOMERY COUNTY ~ j PENNSYLVANIA FOR SCHOOL o ~ PURPOSES ~g ~sect II 0
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~ middot CONDEMNEES BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS TO ~ ~ DECLARATION OF TAKING O)~ -0 II)
~ 5 Condemnees John Bennett MD and Nance Di Rocco by and through their attorney ~8 ~~ o ic Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm hereby ~-g l Ill
sect ~ submit this Brief in Support of Preliminary Objections to the Declaration of Taking The SQgt e ci o~ ~ (I) Preliminary Objections are sectpound 8o ~~ CSA sect 306 (I)
e8
W~ ~ _u l3
COUNTY PENNSYLVANIA
EMINENT DOMAIN - IN REM
middot NO 2018-29523 CIVIL
fi 1led pursuant to the Pennsylvania Eminent Domain Code 26 Pa
MATTER BEFORE THE COURT
~ - 1 Pleading Before the Court Condemnee s Preliminary Objections to Declaration of li ~~
8 0~
~ Taking ff ~o g E 2 Relief Requested ~Jg ClO Igt s ~~ 1 =It - Bl -a
~~
a Discovery and an evidentiary hearing
b Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
c The termination of condemnation
d Revesting of title in the name of John Bennett MD and Nance Di Rocco
e The reimbursement of costs and expenses to Condemnee by Condemnor including
reasonable appraisal attorney and engineering fees and other costs and expenses
actually incurred because of the condemnation proceedings 26 Pa CSA sect 306(g)
STATEMENT OF QUESTIONS INVOLVED
Question 1 Whether Lower Merion School District has the power and right to condemn
Condemnees property when the enabling Statute does not grant Condemnor the right to use
eminent domain and when the Condemnors decision to condemn was done in bad faith and was
arbitrary action equating an abuse of discretion
Suggested Answer No
FACTS
Condemnees own property commonly known as 1835 County Line Road Villanova Pa
19085 (tax parcel no 40-00-12868-00- 7) (the Property) The Property consists of approximately
106197 acres of land and contains two buildings The main building is an approximately 20000
sq ft mansion built in 1920 The second building is approximately 3000 sq ft and built in
approximately 2015 The land is situated next to Villanova University Condemnees purchased the
2
Property in 1997 and have resided there ever since Also currently residing at the property is the
Condemnees minor granddaughter MB
During this time Condemnees became close friends with Villanovas President Father
Peter Donahue Condemnees have hosted various University events at their home over the years
During this time Father Donahue conveyed the Universitys interest in purchasing the Property
Condemnees liked the idea of their property going to the University and always felt that someday
when they were ready to sell that they would sell it to the University Sometime around May of
2018 the Condemnees were contacted by real estate agent Stuart Dessner who relayed that the
Lower Merion School District (LMSD) might be interested in buying their property and their
neighbors property Preferring to sell to the University and knowing that Father Donahue always
wanted the University to have the Property Condemnees approached him and asked if the
University would be interested in buying the Property Father Donahue verbally offered $12
million dollars for the Property on behalf of the University and agreed to have the proper
paperwork drawn-up The University intended to maintain the historic buildings utilizing it in a
way that would not involve razing the property
LMSD learned that the University was interested in buying the Property for $12 million
dollars On or about June 27 2019 the Superintendent ofLMSD Rober L Copeland reached out
to Father Donahue and in an attempt to reduce the purchase price of the Property told Father
Donahue that $12 million dollars is too much for the Property Exhibit 1 Copeland told Father
Donahue that LMSD was interested in buying the Property from the Condemnees Id He wanted
to know how interested Villanova was in purchasing the property and how much Villanova would
be willing to pay Id Copeland then told Father Donahue that they valued the Property at $8 million
dollars Id Father Donahue then met with members of his cabinet and trustees who directed him
3
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
tJ
~ sect (I)
6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
~~
acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
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httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY PENNSYLVANIA CIVIL DIVISION
IN RE LOWER MERION SCHOOL DISTRICT CONDEMNATION OF LAND KNOWN TO BE THE PROPERTY OF JOHN EMINENT DOMAIN - IN REM A BENNETT MD AND NANCE DI ROCCO KNOWN AS A PORTION OF TAX NO 2018-29523 CIVIL MAP PARCEL NO 40-00-12868-00-7 LOWER MERION TOWNSHIP MONTGOMERY COUNTY PENNSYLVANIA FOR SCHOOL PURPOSES
ORDER
AND NOW this day of 2019 after reviewing
Condemnees Preliminary Objections Brief in Support and any answer thereto it is hereby
ORDERED that Condernnees Preliminary Objections are SUSTAINED and the condemnation
terminated
IT IS FURTHER ORDERED that title in fee simple is hereby revested in Condernnees
John Bennett and Nance Di Rocco Condernnor shall record this order in the Montgomery County
Recorder of Deeds and said Recorder of Deeds is directed to record this Order among the land
records of Montgomery County Condemnor shall pay the costs of recording and mail a copy of
this recorded order to Condemnees attorney
IT IS FURTHER ORDERED that Condemnor shall reimburse Condemnee for all costs
and expenses including reasonable appraisal attorney and engineering fees and other costs and
expenses actually incurred because of the condemnation proceeding
BY THE COURT
J
2
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY PENNSYLVANIA CIVIL DIVISION
IN RE LOWER MERION SCHOOL DISTRICT CONDEMNATION OF LAND KNOWN TO BE THE PROPERTY OF JOHN EMINENT DOMAIN - IN REM A BENNETT MD AND NANCE DI ROCCO KNOWN AS A PORTION OF TAX NO 2018-29523 CIVIL MAP PARCEL NO 40-00-12868-00-7 LOWER MERION TOWNSHIP MONTGOMERY COUNTY PENNSYLVANIA FOR SCHOOL PURPOSES
CONDEMNEES PRELIMINARY OBJECTIONS TO DECLARATION OF TAKING
AND NOW Condemnees John Bennett MD and Nance Di Rocco by and through their
attorney Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm
hereby file Preliminary Objections to Lower Merion School Districts Declaration of Taking filed
in this matter The preliminary objections contained herein are filed pursuant to the Pennsylvania
Eminent Domain Code 26 Pa CSA sect 306
Preliminary objections are the exclusive method for challenging a condemnation 26 Pa
CSA sect 306(a)(3) In condemnation proceedings preliminary objections serve a different purpose
3
than preliminary objections in a civil action In re a Condemnation Proceeding by South Whitehall
Twp 822 A2d 142 143 (Pa Commw Ct 2003) Per Section 306(a)(3) of the Pennsylvania
Eminent Domain Code preliminary objections in condemnation proceedings are limited to
challenging the following (1) power or right of the condemnor to condemn (2) sufficiency of the
security (3) the declaration of taking or (4) any other procedure followed by the condemnor
Condemnees John Bennett MD and Nance Di Rocco by and through undersigned counsel
hereby assert the following preliminary objections to the condemnation filed in the above-docketed
matter
1 Condemnees own property commonly known as 1835 County Line Road
Villanova Pa 19085 (tax parcel no 40-00-12868-00- 7) (the Property)
2 The Property consists of approximately 106197 acres of land and contains two
buildings
3 In May or June of 2018 Villanova Universitys President Father Peter Donahue
verbally offered to have the University buy the property for $12 million dollars and agreed to have
the proper paperwork drawn-up
4 Lower Merion School District (LMSD) heard that the University was interested
in buying the Property for $12 million dollars
5 On or about June 27 2019 the Superintendent of LMSD Rober L Copeland
reached out to Father Donahue and in an attempt to reduce the purchase price of the Property told
Father Donahue that $12 million dollars is too much for the Property
6 Copeland told Father Donahue that LMSD was interested in buying the Property
from the Condemnees
7 Copeland then told Father Donahue that they valued the Property at $8 million
4
dollars
8 Father Donahue then met with members of his cabinet and trustees who directed
him to get an independent assessment of the value
9 Father Donahue relayed to Condemnees that the University was going to delay their
offer letter because the University was not interested in appearing hostile or trying to block LMSD
especially with all the flair up over Stoneleigh
10 However Father Donahue remained interested pending the assessment of value
11 On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
12 On or about November 7 2018 the University and Condemnees entered into and
executed an agreement of sale with a purchase price of $9650000 Closing was scheduled for
January 4 2019
13 The agreement was contingent upon LMSD not taking the property via eminent
domain
14 LMSD had reached an agreement with the owner of a 56-acre property on Spring
Mill Road that was to be used for fields instead of Condemnees Property
15 On or about December 18 2018 Condemnee John Bennett LMSD real estate agent
Stuart Dessner and Superintendent Robert Copeland met to discuss the status of things
16 They discussed the LMSDs agreement to buy the 56 acre Spring Mill Road
property which the LMSD already agreed to buy and which would serve their recreational needs
adequately
17 Copeland expressed the LMSDs desire to landbank Condemnees property A
landbank is a large body of land held for future development or disposal
5
18 Ultimately if LMSD did not need Condemnees Property and the Spring Mill Road
property Dessner stated that LMSD could always sell it to Villanova University
19 Before ending the meeting Condemnee John Bennett gave Copeland and Dessner a
copy of his Purchase Agreement with Villanova University with the understanding that it would
remain confidential
20 Condemnee also informed Dessner and Copeland that the University would pull-
out of their Agreement of Sale if Condemnees were able to reach an agreement with LMSD
21 Unbeknownst to Condemnees on December 21 2018 (three days after Condemnee
John Bennett gave Dessner and Copeland confidential copies of the Universitys Agreement of
Sale) the School Board convened and passed a Resolution to condemn the Property
22 In a press released published that same day the School Board explained its illegal
intention as an attempt to thwart the purchase of the Property by Villanova University and to
maintain the tax base stating the condemnation will keep the property in use for the residents of
Lower Merion Township and Narbeth rather than enabling Villanova University to take the
property off the tax rolls for its private development use
23 LMSD explained further that although the sellers had indicated the District offers
were basically acceptable with minor revisions the agreements of sale were never returned to the
District
24 President of the Lower Merion Board of School Directors Dr Melissa Gilbert said
Im confident our residents would rather see the land being used by their neighbors than by
college students who dont live in Lower Merion or Narberth
25 The press release also stated that the Property would not actually be needed until
construction began in 2023
6
26 LMSD has no definite plans formulated as to the use to be made of the condemned
property No specifications as to the proposed building have yet been indicated Nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment or any other suitable investigation leading
to an intelligent informed judgment by the Condernnor
27 The Resolution authorized the payment of $9950000 and a lease permitting
Condemnees to reside on and occupy the Property until May 2023 (ie 7pprox 5 years)
28 On December 21 2018 Villanovas Counsel informed Condernnees that LMSD
passed the condemnation Resolution and suggested the agreement of sale be terminated or that
closing be pushed back to January 21 2019 to allow the school district more time to reach an
amicable agreement with Condemnees
29 On December 21 2018 LMSD formally took title to Condemnees Property by
filing a Declaration of Taking in the Montgomery County Court of Common Pleas
30 The Declaration of Taking stated vaguely that the Property was taken for school
district purposes as provide for by the resolution specifically for the purpose of utilizing said land
in conjunction with the construction of school buildings related facilities and necessary
improvements
31 Condernnees later learned the reason for Condernnors quick condemnation
Condemnees present counsel informed them that the Public School Code denies school districts
the right to take by condemnation land belonging to any incorporated institution of learning
such as Villanova University 24 PS sect 7-721 Therefore if Villanova University had closed on
7
the deal on January 4 2019 as planned LMSD would not have been able to condemn the Property
from Villanova University
32 Thus LMSD abused its eminent domain authority by taking advantage of
Condemnee John Bennetts confidential disclosure of his Purchase Agreement with Villanova that
he disclosed in good faith Condemnee John Bennett mistakenly believed LMSD was engaging in
good faith negotiations
33 On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD
attorney Daniel Mita to discuss the case
34 Attorney Mita emphasized to Cohen that if Condemnees did not agree to LMSDs
Purchase Agreement than Condemnees would be left without a lease which meant they would have
to quickly move
35 Attorney Mita emphasized that if the Condemnees did not agree the Condemnees
granddaughter MB who resides with them would not be able to attend LMSD
36 This highlights the hardship eminent domain places upon individuals and their
families and underscores why the abuse of such an awesome power should not be tolerated by this
Court
37 Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 property until May 2023
38 The 1800 West Montgomery Avenue property would provide easy access to the
Condemnees property
39 Also of note is that LMSD terminated the ill-informed Agreement of Sale for the
8
Spring Mill property on January 14 2019 further evidencing the lack of suitable investigation
leading to an intelligent informed judgment by the Condemnor
40 In accordance with Section 306 of the Pennsylvania Eminent Domain Code the
Condemnees file the following preliminary objections to the Condemnors Declaration of Taking
PRELIMINARY OBJECTIONS
THE POWER AND RIGHT TO CONDEMN
41 The Condemnees object to the power or right of LMSD to condemn
42 The power of eminent domain is the power to take property for a public use without
the consent of the owner of the property interest Eminent domain is not conferred by the
constitution It is a right inherent in the state as sovereign and is limited by the constitution In re
Condemnation of 110 Washington Street~ 767 A2d 1154 (Pa Commw Ct 2001) appeal denied
788 A2d 3 79 ( emphasis added) The Pennsylvania Constitution provides nor shall private
property be taken or applied to public use without authority of law and without just compensation
being first made or secured Pa Const art I sect 10 The United States Constitution provides
nor shall private property be taken for public use without just compensation US Const
Amendment V The Fifth Amendments prohibition against the taking of private property for
public use without just compensation applies against the States through the Fourteenth
Amendment Texaco Inc v Short 454 US 516523 n 11 (1982) Webbs Fabulous Pharmacies
_Inc v Beckwith 449 US 155 160 (1908)
43 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute and because the
9
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating an abuse of discretion
Eubling Statute
44 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose but instead was to thwart the sale of the Property to
Villanova from whom LMSD could not legally condemn
45 The legislature may delegate the right to exercise eminent domain power but the
body to which the power is entrusted has no authority beyond that which is legislatively granted
Marple Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Commw Ct 2004)
middotNegotiations
46 The Public School Code permits a school district to condemn property when it
cannot agree on the terms of its purchase with the owner or owners 24 PS sect 7-721
4 7 School directors cannot pass resolutions effecting condemnation until there has
been a failure to agree to terms of purchase with owner of realty selected for school purposes Jury
v Wiest 193 A 5 7 (Pa 1937)
48 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because Condemnor and Condemnee did not disagree on the terms of the
purchase and were still negotiating
10
Not for School Purposes
49 The Public School Code permits LMSD to condemn for school purposes 24 PS
sect 7-721
50 The legislature has provided school district boards of directors with power to
acquire by condemnation real estate it may deem necessary to furnish school buildings or other
suitable sites for proper school purposes 24 PS sect 7-703
51 Our State Supreme Court has directed that a taking may be examined for its true
purpose and not just the purpose as stated in the declaration of taking Middletown Tp V Lands
of Stone 939 A2d 331 (Pa 2007)
52 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because the condemnation was not for school purposes
Fraud Collusion Bad Faith or Arbitran Action Eguatin2 an Abuse of Discretion
53 A Condemnors decision to condemn may be overturned where the record shows
fraud collusion bad faith or arbitrary action equating an abuse of discretion Weber v City
of Philadelphia 262 A2d 297299 (1970)(emphasis added)
54 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Code because the Condemnor s decision to
condemn was the result of fraud collusion bad faith or arbitrary constituting an abuse of
discretion
Suitable Investi2ation Leading to an Intelligent lnfonned Jud2111ent
11
55 Unless the property is acquired after a suitable investigation leading to an
intelligent informed judgment by the condemnor the condemnation is invalid In re Scho Dist
Of Pittsburg 244 A2d 42 46 (Pa 1968) ( citing Winger v Aires 89 A2d 521 (Pa 1952)
56 The Condemnor failed to do a suitable investigation leading to an intelligent
informed judgment by the condemnor because LMSD has no definite plans formulated as to the
use to be made of the condemned property no specifications as to the proposed building have yet
been indicated nor has any definitive location of the tract been designated for the intended
structure no estimate of construction is yet available no wetlands study has been completed nor
a final development plan a final architectural plan a final engineering plan proper zoning
approval a thorough needs assessment nor any other due diligence measures
ExcessiveUnnecessary Taking
57 Condemnor may not appropriate a greater amount of property than is reasonably
required for contemplated purpose Aweal ofWaite 641 A2d 25 (Pa Commw Ct 1994)
58 A condemnation may be overturned if it is found to be excessive Estate of Rochez
by Goslin 558 A2d 605 (Pa Commw Ct 1989) amended on reconsideration 566 A2d 631 (Pa
Commw Ct 1989)
59 The taking is excessiveunnecessary because the Condemnor only asserted a need
for 56 acres for fields originally whereas the Condemnees property is 106 acres
Future Use Within a Reasonable Time
60 Land may be condemned for future expansion even if it cannot presently be used
for the purposes stated in the declaration of taking as long as the land will in good faith be necessary
12
for future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324
(Pa Commw Ct 1977)
61 Condemnees property is not needed for a future use within a reasonable time
because Condemnor is leasing the property back to Condemnee for 5 years and is based on
assumptions and possibilities that have not been proven by the evidence
RELIEF REQUESTED
62 Pursuant to the Pennsylvania Eminent Domain Code the court shall determine
promptly all preliminary objections and make preliminary and final orders and decrees as justice
shall require including the revesting of title 26 Pa CSA sect 306 (f)(l)
63 Moreover ifan issue of fact is raised the court shall take evidence by depositions
or otherwise 26 Pa CSA sect 306 (f)(2)
64 When preliminary objections raise an issue of fact the court must hold an
evidentiary hearing 26 Pa CSA sect 306(f)(2) Ameal ofMcKonly 618 A2d 1169 (Pa Commw
Ct 1992)
65 The Condemnees have raised issues of fact in these Preliminary Objections
66 Discovery and an evidentiary hearing are required
67 Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
68 The termination of condemnation
69 Revesting of title in the name of John Bennett MD and Nance Di Rocco
70 The reimbursement of costs and expenses to Condemnee by Condemnor including
13
reasonable appraisal attorney and engineering fees and other costs and expenses actually incurred
because of the condemnation proceedings 26 Pa CSA sect 306(g)
71 Condemnees file concurrently herewith a Brief in Support per local rule 1028( c)
and incorporate it herein by reference
WHEREFORE for the reasons stated above Condemnees respectfully submit these
preliminary objections and request that the Court grant the reliefrequested above
Respectfully submitted
FAHERTY LAW FIRM
Dated February 7 2019
Michael F Faherty Esquire Atty Id 55860 mfaherty(fahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000 Counsel for Condemnees
14
CERTIFICATE OF SERVICE
I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing
document filed on February _J_ 2019 was sent to the following individuals via first class mail
on February _7_ 2019
Drew K Kapur Esq ID No 35018 Duane Morris LLP 30 South 17th Street Philadelphia PA 19103-4196 dkkapurduanemorriscom 215-979-1000 Attorney for Condemnor
Michael F Faherty Esq Bar ID 55860 Anthony M Corby Esq Bar ID 316852 75 Cedar Ave Hershey PA 17033 717-256-3000 mfahertvfahertylawfinncom acorbyfabertylawfirmco Attorney for Condemnees
15
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- ~ ci ~ i IN RE LOWER MERION SCHOOL sect~ DISTRICT CONDEMNATION OF LAND Ii E KNOWN TO BE THE PROPERTY OF JOHN -~
pound g A BENNETT MD AND NANCE DI j ~ ROCCO KNOWN AS A PORTION OF TAX i II) Ill
~ MAP PARCEL NO 40-00-12868-00-7 ~ ~ LOWER MERION TOWNSHIP ~ ~ MONTGOMERY COUNTY ~ j PENNSYLVANIA FOR SCHOOL o ~ PURPOSES ~g ~sect II 0
~ -Ii
bull I)
~ middot CONDEMNEES BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS TO ~ ~ DECLARATION OF TAKING O)~ -0 II)
~ 5 Condemnees John Bennett MD and Nance Di Rocco by and through their attorney ~8 ~~ o ic Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm hereby ~-g l Ill
sect ~ submit this Brief in Support of Preliminary Objections to the Declaration of Taking The SQgt e ci o~ ~ (I) Preliminary Objections are sectpound 8o ~~ CSA sect 306 (I)
e8
W~ ~ _u l3
COUNTY PENNSYLVANIA
EMINENT DOMAIN - IN REM
middot NO 2018-29523 CIVIL
fi 1led pursuant to the Pennsylvania Eminent Domain Code 26 Pa
MATTER BEFORE THE COURT
~ - 1 Pleading Before the Court Condemnee s Preliminary Objections to Declaration of li ~~
8 0~
~ Taking ff ~o g E 2 Relief Requested ~Jg ClO Igt s ~~ 1 =It - Bl -a
~~
a Discovery and an evidentiary hearing
b Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
c The termination of condemnation
d Revesting of title in the name of John Bennett MD and Nance Di Rocco
e The reimbursement of costs and expenses to Condemnee by Condemnor including
reasonable appraisal attorney and engineering fees and other costs and expenses
actually incurred because of the condemnation proceedings 26 Pa CSA sect 306(g)
STATEMENT OF QUESTIONS INVOLVED
Question 1 Whether Lower Merion School District has the power and right to condemn
Condemnees property when the enabling Statute does not grant Condemnor the right to use
eminent domain and when the Condemnors decision to condemn was done in bad faith and was
arbitrary action equating an abuse of discretion
Suggested Answer No
FACTS
Condemnees own property commonly known as 1835 County Line Road Villanova Pa
19085 (tax parcel no 40-00-12868-00- 7) (the Property) The Property consists of approximately
106197 acres of land and contains two buildings The main building is an approximately 20000
sq ft mansion built in 1920 The second building is approximately 3000 sq ft and built in
approximately 2015 The land is situated next to Villanova University Condemnees purchased the
2
Property in 1997 and have resided there ever since Also currently residing at the property is the
Condemnees minor granddaughter MB
During this time Condemnees became close friends with Villanovas President Father
Peter Donahue Condemnees have hosted various University events at their home over the years
During this time Father Donahue conveyed the Universitys interest in purchasing the Property
Condemnees liked the idea of their property going to the University and always felt that someday
when they were ready to sell that they would sell it to the University Sometime around May of
2018 the Condemnees were contacted by real estate agent Stuart Dessner who relayed that the
Lower Merion School District (LMSD) might be interested in buying their property and their
neighbors property Preferring to sell to the University and knowing that Father Donahue always
wanted the University to have the Property Condemnees approached him and asked if the
University would be interested in buying the Property Father Donahue verbally offered $12
million dollars for the Property on behalf of the University and agreed to have the proper
paperwork drawn-up The University intended to maintain the historic buildings utilizing it in a
way that would not involve razing the property
LMSD learned that the University was interested in buying the Property for $12 million
dollars On or about June 27 2019 the Superintendent ofLMSD Rober L Copeland reached out
to Father Donahue and in an attempt to reduce the purchase price of the Property told Father
Donahue that $12 million dollars is too much for the Property Exhibit 1 Copeland told Father
Donahue that LMSD was interested in buying the Property from the Condemnees Id He wanted
to know how interested Villanova was in purchasing the property and how much Villanova would
be willing to pay Id Copeland then told Father Donahue that they valued the Property at $8 million
dollars Id Father Donahue then met with members of his cabinet and trustees who directed him
3
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
tJ
~ sect (I)
6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
~~
acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System 1of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum~nts -- -
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
records of Montgomery County Condemnor shall pay the costs of recording and mail a copy of
this recorded order to Condemnees attorney
IT IS FURTHER ORDERED that Condemnor shall reimburse Condemnee for all costs
and expenses including reasonable appraisal attorney and engineering fees and other costs and
expenses actually incurred because of the condemnation proceeding
BY THE COURT
J
2
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY PENNSYLVANIA CIVIL DIVISION
IN RE LOWER MERION SCHOOL DISTRICT CONDEMNATION OF LAND KNOWN TO BE THE PROPERTY OF JOHN EMINENT DOMAIN - IN REM A BENNETT MD AND NANCE DI ROCCO KNOWN AS A PORTION OF TAX NO 2018-29523 CIVIL MAP PARCEL NO 40-00-12868-00-7 LOWER MERION TOWNSHIP MONTGOMERY COUNTY PENNSYLVANIA FOR SCHOOL PURPOSES
CONDEMNEES PRELIMINARY OBJECTIONS TO DECLARATION OF TAKING
AND NOW Condemnees John Bennett MD and Nance Di Rocco by and through their
attorney Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm
hereby file Preliminary Objections to Lower Merion School Districts Declaration of Taking filed
in this matter The preliminary objections contained herein are filed pursuant to the Pennsylvania
Eminent Domain Code 26 Pa CSA sect 306
Preliminary objections are the exclusive method for challenging a condemnation 26 Pa
CSA sect 306(a)(3) In condemnation proceedings preliminary objections serve a different purpose
3
than preliminary objections in a civil action In re a Condemnation Proceeding by South Whitehall
Twp 822 A2d 142 143 (Pa Commw Ct 2003) Per Section 306(a)(3) of the Pennsylvania
Eminent Domain Code preliminary objections in condemnation proceedings are limited to
challenging the following (1) power or right of the condemnor to condemn (2) sufficiency of the
security (3) the declaration of taking or (4) any other procedure followed by the condemnor
Condemnees John Bennett MD and Nance Di Rocco by and through undersigned counsel
hereby assert the following preliminary objections to the condemnation filed in the above-docketed
matter
1 Condemnees own property commonly known as 1835 County Line Road
Villanova Pa 19085 (tax parcel no 40-00-12868-00- 7) (the Property)
2 The Property consists of approximately 106197 acres of land and contains two
buildings
3 In May or June of 2018 Villanova Universitys President Father Peter Donahue
verbally offered to have the University buy the property for $12 million dollars and agreed to have
the proper paperwork drawn-up
4 Lower Merion School District (LMSD) heard that the University was interested
in buying the Property for $12 million dollars
5 On or about June 27 2019 the Superintendent of LMSD Rober L Copeland
reached out to Father Donahue and in an attempt to reduce the purchase price of the Property told
Father Donahue that $12 million dollars is too much for the Property
6 Copeland told Father Donahue that LMSD was interested in buying the Property
from the Condemnees
7 Copeland then told Father Donahue that they valued the Property at $8 million
4
dollars
8 Father Donahue then met with members of his cabinet and trustees who directed
him to get an independent assessment of the value
9 Father Donahue relayed to Condemnees that the University was going to delay their
offer letter because the University was not interested in appearing hostile or trying to block LMSD
especially with all the flair up over Stoneleigh
10 However Father Donahue remained interested pending the assessment of value
11 On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
12 On or about November 7 2018 the University and Condemnees entered into and
executed an agreement of sale with a purchase price of $9650000 Closing was scheduled for
January 4 2019
13 The agreement was contingent upon LMSD not taking the property via eminent
domain
14 LMSD had reached an agreement with the owner of a 56-acre property on Spring
Mill Road that was to be used for fields instead of Condemnees Property
15 On or about December 18 2018 Condemnee John Bennett LMSD real estate agent
Stuart Dessner and Superintendent Robert Copeland met to discuss the status of things
16 They discussed the LMSDs agreement to buy the 56 acre Spring Mill Road
property which the LMSD already agreed to buy and which would serve their recreational needs
adequately
17 Copeland expressed the LMSDs desire to landbank Condemnees property A
landbank is a large body of land held for future development or disposal
5
18 Ultimately if LMSD did not need Condemnees Property and the Spring Mill Road
property Dessner stated that LMSD could always sell it to Villanova University
19 Before ending the meeting Condemnee John Bennett gave Copeland and Dessner a
copy of his Purchase Agreement with Villanova University with the understanding that it would
remain confidential
20 Condemnee also informed Dessner and Copeland that the University would pull-
out of their Agreement of Sale if Condemnees were able to reach an agreement with LMSD
21 Unbeknownst to Condemnees on December 21 2018 (three days after Condemnee
John Bennett gave Dessner and Copeland confidential copies of the Universitys Agreement of
Sale) the School Board convened and passed a Resolution to condemn the Property
22 In a press released published that same day the School Board explained its illegal
intention as an attempt to thwart the purchase of the Property by Villanova University and to
maintain the tax base stating the condemnation will keep the property in use for the residents of
Lower Merion Township and Narbeth rather than enabling Villanova University to take the
property off the tax rolls for its private development use
23 LMSD explained further that although the sellers had indicated the District offers
were basically acceptable with minor revisions the agreements of sale were never returned to the
District
24 President of the Lower Merion Board of School Directors Dr Melissa Gilbert said
Im confident our residents would rather see the land being used by their neighbors than by
college students who dont live in Lower Merion or Narberth
25 The press release also stated that the Property would not actually be needed until
construction began in 2023
6
26 LMSD has no definite plans formulated as to the use to be made of the condemned
property No specifications as to the proposed building have yet been indicated Nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment or any other suitable investigation leading
to an intelligent informed judgment by the Condernnor
27 The Resolution authorized the payment of $9950000 and a lease permitting
Condemnees to reside on and occupy the Property until May 2023 (ie 7pprox 5 years)
28 On December 21 2018 Villanovas Counsel informed Condernnees that LMSD
passed the condemnation Resolution and suggested the agreement of sale be terminated or that
closing be pushed back to January 21 2019 to allow the school district more time to reach an
amicable agreement with Condemnees
29 On December 21 2018 LMSD formally took title to Condemnees Property by
filing a Declaration of Taking in the Montgomery County Court of Common Pleas
30 The Declaration of Taking stated vaguely that the Property was taken for school
district purposes as provide for by the resolution specifically for the purpose of utilizing said land
in conjunction with the construction of school buildings related facilities and necessary
improvements
31 Condernnees later learned the reason for Condernnors quick condemnation
Condemnees present counsel informed them that the Public School Code denies school districts
the right to take by condemnation land belonging to any incorporated institution of learning
such as Villanova University 24 PS sect 7-721 Therefore if Villanova University had closed on
7
the deal on January 4 2019 as planned LMSD would not have been able to condemn the Property
from Villanova University
32 Thus LMSD abused its eminent domain authority by taking advantage of
Condemnee John Bennetts confidential disclosure of his Purchase Agreement with Villanova that
he disclosed in good faith Condemnee John Bennett mistakenly believed LMSD was engaging in
good faith negotiations
33 On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD
attorney Daniel Mita to discuss the case
34 Attorney Mita emphasized to Cohen that if Condemnees did not agree to LMSDs
Purchase Agreement than Condemnees would be left without a lease which meant they would have
to quickly move
35 Attorney Mita emphasized that if the Condemnees did not agree the Condemnees
granddaughter MB who resides with them would not be able to attend LMSD
36 This highlights the hardship eminent domain places upon individuals and their
families and underscores why the abuse of such an awesome power should not be tolerated by this
Court
37 Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 property until May 2023
38 The 1800 West Montgomery Avenue property would provide easy access to the
Condemnees property
39 Also of note is that LMSD terminated the ill-informed Agreement of Sale for the
8
Spring Mill property on January 14 2019 further evidencing the lack of suitable investigation
leading to an intelligent informed judgment by the Condemnor
40 In accordance with Section 306 of the Pennsylvania Eminent Domain Code the
Condemnees file the following preliminary objections to the Condemnors Declaration of Taking
PRELIMINARY OBJECTIONS
THE POWER AND RIGHT TO CONDEMN
41 The Condemnees object to the power or right of LMSD to condemn
42 The power of eminent domain is the power to take property for a public use without
the consent of the owner of the property interest Eminent domain is not conferred by the
constitution It is a right inherent in the state as sovereign and is limited by the constitution In re
Condemnation of 110 Washington Street~ 767 A2d 1154 (Pa Commw Ct 2001) appeal denied
788 A2d 3 79 ( emphasis added) The Pennsylvania Constitution provides nor shall private
property be taken or applied to public use without authority of law and without just compensation
being first made or secured Pa Const art I sect 10 The United States Constitution provides
nor shall private property be taken for public use without just compensation US Const
Amendment V The Fifth Amendments prohibition against the taking of private property for
public use without just compensation applies against the States through the Fourteenth
Amendment Texaco Inc v Short 454 US 516523 n 11 (1982) Webbs Fabulous Pharmacies
_Inc v Beckwith 449 US 155 160 (1908)
43 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute and because the
9
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating an abuse of discretion
Eubling Statute
44 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose but instead was to thwart the sale of the Property to
Villanova from whom LMSD could not legally condemn
45 The legislature may delegate the right to exercise eminent domain power but the
body to which the power is entrusted has no authority beyond that which is legislatively granted
Marple Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Commw Ct 2004)
middotNegotiations
46 The Public School Code permits a school district to condemn property when it
cannot agree on the terms of its purchase with the owner or owners 24 PS sect 7-721
4 7 School directors cannot pass resolutions effecting condemnation until there has
been a failure to agree to terms of purchase with owner of realty selected for school purposes Jury
v Wiest 193 A 5 7 (Pa 1937)
48 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because Condemnor and Condemnee did not disagree on the terms of the
purchase and were still negotiating
10
Not for School Purposes
49 The Public School Code permits LMSD to condemn for school purposes 24 PS
sect 7-721
50 The legislature has provided school district boards of directors with power to
acquire by condemnation real estate it may deem necessary to furnish school buildings or other
suitable sites for proper school purposes 24 PS sect 7-703
51 Our State Supreme Court has directed that a taking may be examined for its true
purpose and not just the purpose as stated in the declaration of taking Middletown Tp V Lands
of Stone 939 A2d 331 (Pa 2007)
52 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because the condemnation was not for school purposes
Fraud Collusion Bad Faith or Arbitran Action Eguatin2 an Abuse of Discretion
53 A Condemnors decision to condemn may be overturned where the record shows
fraud collusion bad faith or arbitrary action equating an abuse of discretion Weber v City
of Philadelphia 262 A2d 297299 (1970)(emphasis added)
54 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Code because the Condemnor s decision to
condemn was the result of fraud collusion bad faith or arbitrary constituting an abuse of
discretion
Suitable Investi2ation Leading to an Intelligent lnfonned Jud2111ent
11
55 Unless the property is acquired after a suitable investigation leading to an
intelligent informed judgment by the condemnor the condemnation is invalid In re Scho Dist
Of Pittsburg 244 A2d 42 46 (Pa 1968) ( citing Winger v Aires 89 A2d 521 (Pa 1952)
56 The Condemnor failed to do a suitable investigation leading to an intelligent
informed judgment by the condemnor because LMSD has no definite plans formulated as to the
use to be made of the condemned property no specifications as to the proposed building have yet
been indicated nor has any definitive location of the tract been designated for the intended
structure no estimate of construction is yet available no wetlands study has been completed nor
a final development plan a final architectural plan a final engineering plan proper zoning
approval a thorough needs assessment nor any other due diligence measures
ExcessiveUnnecessary Taking
57 Condemnor may not appropriate a greater amount of property than is reasonably
required for contemplated purpose Aweal ofWaite 641 A2d 25 (Pa Commw Ct 1994)
58 A condemnation may be overturned if it is found to be excessive Estate of Rochez
by Goslin 558 A2d 605 (Pa Commw Ct 1989) amended on reconsideration 566 A2d 631 (Pa
Commw Ct 1989)
59 The taking is excessiveunnecessary because the Condemnor only asserted a need
for 56 acres for fields originally whereas the Condemnees property is 106 acres
Future Use Within a Reasonable Time
60 Land may be condemned for future expansion even if it cannot presently be used
for the purposes stated in the declaration of taking as long as the land will in good faith be necessary
12
for future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324
(Pa Commw Ct 1977)
61 Condemnees property is not needed for a future use within a reasonable time
because Condemnor is leasing the property back to Condemnee for 5 years and is based on
assumptions and possibilities that have not been proven by the evidence
RELIEF REQUESTED
62 Pursuant to the Pennsylvania Eminent Domain Code the court shall determine
promptly all preliminary objections and make preliminary and final orders and decrees as justice
shall require including the revesting of title 26 Pa CSA sect 306 (f)(l)
63 Moreover ifan issue of fact is raised the court shall take evidence by depositions
or otherwise 26 Pa CSA sect 306 (f)(2)
64 When preliminary objections raise an issue of fact the court must hold an
evidentiary hearing 26 Pa CSA sect 306(f)(2) Ameal ofMcKonly 618 A2d 1169 (Pa Commw
Ct 1992)
65 The Condemnees have raised issues of fact in these Preliminary Objections
66 Discovery and an evidentiary hearing are required
67 Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
68 The termination of condemnation
69 Revesting of title in the name of John Bennett MD and Nance Di Rocco
70 The reimbursement of costs and expenses to Condemnee by Condemnor including
13
reasonable appraisal attorney and engineering fees and other costs and expenses actually incurred
because of the condemnation proceedings 26 Pa CSA sect 306(g)
71 Condemnees file concurrently herewith a Brief in Support per local rule 1028( c)
and incorporate it herein by reference
WHEREFORE for the reasons stated above Condemnees respectfully submit these
preliminary objections and request that the Court grant the reliefrequested above
Respectfully submitted
FAHERTY LAW FIRM
Dated February 7 2019
Michael F Faherty Esquire Atty Id 55860 mfaherty(fahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000 Counsel for Condemnees
14
CERTIFICATE OF SERVICE
I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing
document filed on February _J_ 2019 was sent to the following individuals via first class mail
on February _7_ 2019
Drew K Kapur Esq ID No 35018 Duane Morris LLP 30 South 17th Street Philadelphia PA 19103-4196 dkkapurduanemorriscom 215-979-1000 Attorney for Condemnor
Michael F Faherty Esq Bar ID 55860 Anthony M Corby Esq Bar ID 316852 75 Cedar Ave Hershey PA 17033 717-256-3000 mfahertvfahertylawfinncom acorbyfabertylawfirmco Attorney for Condemnees
15
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6(1) o C g ~ CERTIFICATE OF COMPLIANCE 00 0 g il tJ I certify that this filing complies with the provisions of the Public Access Policy of the ~i 0 C
~g Un(fied Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that 111
-g E 0 e ~ require filing confidential information and documents differently than non-confidential
~ ~ middot12 g information and documents -~ sect s e 0
osect (I) C S C
sect~ s -~ t Respectfully submitted ci ejg
~~ FAHERTY LAW FIRM secti ~ liE
ig ~~ -r-_ _ ltii~ ~~ S C II) Ill
i ~ Michael F Faherty Esquire ~ ~ Attorney Id 55860 ~ ~ 7 5 Cedar A venue ~ j Hershey Pennsylvania 17033
C
~ g Tel (717)256-3000 ~ 8 mfahertyfahertylawfirmcom ~ f Attorney for Plaintiffs
bull I)
5middot5 CI o- Dated February 7 2019 0~ lto-0)~ -0 II)
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osect ~ ~ IN THE COURT OF COMMON PLEAS OF MONTGOMERY sect ~ CIVIL DIVISION s II)
- ~ ci ~ i IN RE LOWER MERION SCHOOL sect~ DISTRICT CONDEMNATION OF LAND Ii E KNOWN TO BE THE PROPERTY OF JOHN -~
pound g A BENNETT MD AND NANCE DI j ~ ROCCO KNOWN AS A PORTION OF TAX i II) Ill
~ MAP PARCEL NO 40-00-12868-00-7 ~ ~ LOWER MERION TOWNSHIP ~ ~ MONTGOMERY COUNTY ~ j PENNSYLVANIA FOR SCHOOL o ~ PURPOSES ~g ~sect II 0
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~ middot CONDEMNEES BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS TO ~ ~ DECLARATION OF TAKING O)~ -0 II)
~ 5 Condemnees John Bennett MD and Nance Di Rocco by and through their attorney ~8 ~~ o ic Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm hereby ~-g l Ill
sect ~ submit this Brief in Support of Preliminary Objections to the Declaration of Taking The SQgt e ci o~ ~ (I) Preliminary Objections are sectpound 8o ~~ CSA sect 306 (I)
e8
W~ ~ _u l3
COUNTY PENNSYLVANIA
EMINENT DOMAIN - IN REM
middot NO 2018-29523 CIVIL
fi 1led pursuant to the Pennsylvania Eminent Domain Code 26 Pa
MATTER BEFORE THE COURT
~ - 1 Pleading Before the Court Condemnee s Preliminary Objections to Declaration of li ~~
8 0~
~ Taking ff ~o g E 2 Relief Requested ~Jg ClO Igt s ~~ 1 =It - Bl -a
~~
a Discovery and an evidentiary hearing
b Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
c The termination of condemnation
d Revesting of title in the name of John Bennett MD and Nance Di Rocco
e The reimbursement of costs and expenses to Condemnee by Condemnor including
reasonable appraisal attorney and engineering fees and other costs and expenses
actually incurred because of the condemnation proceedings 26 Pa CSA sect 306(g)
STATEMENT OF QUESTIONS INVOLVED
Question 1 Whether Lower Merion School District has the power and right to condemn
Condemnees property when the enabling Statute does not grant Condemnor the right to use
eminent domain and when the Condemnors decision to condemn was done in bad faith and was
arbitrary action equating an abuse of discretion
Suggested Answer No
FACTS
Condemnees own property commonly known as 1835 County Line Road Villanova Pa
19085 (tax parcel no 40-00-12868-00- 7) (the Property) The Property consists of approximately
106197 acres of land and contains two buildings The main building is an approximately 20000
sq ft mansion built in 1920 The second building is approximately 3000 sq ft and built in
approximately 2015 The land is situated next to Villanova University Condemnees purchased the
2
Property in 1997 and have resided there ever since Also currently residing at the property is the
Condemnees minor granddaughter MB
During this time Condemnees became close friends with Villanovas President Father
Peter Donahue Condemnees have hosted various University events at their home over the years
During this time Father Donahue conveyed the Universitys interest in purchasing the Property
Condemnees liked the idea of their property going to the University and always felt that someday
when they were ready to sell that they would sell it to the University Sometime around May of
2018 the Condemnees were contacted by real estate agent Stuart Dessner who relayed that the
Lower Merion School District (LMSD) might be interested in buying their property and their
neighbors property Preferring to sell to the University and knowing that Father Donahue always
wanted the University to have the Property Condemnees approached him and asked if the
University would be interested in buying the Property Father Donahue verbally offered $12
million dollars for the Property on behalf of the University and agreed to have the proper
paperwork drawn-up The University intended to maintain the historic buildings utilizing it in a
way that would not involve razing the property
LMSD learned that the University was interested in buying the Property for $12 million
dollars On or about June 27 2019 the Superintendent ofLMSD Rober L Copeland reached out
to Father Donahue and in an attempt to reduce the purchase price of the Property told Father
Donahue that $12 million dollars is too much for the Property Exhibit 1 Copeland told Father
Donahue that LMSD was interested in buying the Property from the Condemnees Id He wanted
to know how interested Villanova was in purchasing the property and how much Villanova would
be willing to pay Id Copeland then told Father Donahue that they valued the Property at $8 million
dollars Id Father Donahue then met with members of his cabinet and trustees who directed him
3
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
tJ
~ sect (I)
6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
~~
acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY PENNSYLVANIA CIVIL DIVISION
IN RE LOWER MERION SCHOOL DISTRICT CONDEMNATION OF LAND KNOWN TO BE THE PROPERTY OF JOHN EMINENT DOMAIN - IN REM A BENNETT MD AND NANCE DI ROCCO KNOWN AS A PORTION OF TAX NO 2018-29523 CIVIL MAP PARCEL NO 40-00-12868-00-7 LOWER MERION TOWNSHIP MONTGOMERY COUNTY PENNSYLVANIA FOR SCHOOL PURPOSES
CONDEMNEES PRELIMINARY OBJECTIONS TO DECLARATION OF TAKING
AND NOW Condemnees John Bennett MD and Nance Di Rocco by and through their
attorney Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm
hereby file Preliminary Objections to Lower Merion School Districts Declaration of Taking filed
in this matter The preliminary objections contained herein are filed pursuant to the Pennsylvania
Eminent Domain Code 26 Pa CSA sect 306
Preliminary objections are the exclusive method for challenging a condemnation 26 Pa
CSA sect 306(a)(3) In condemnation proceedings preliminary objections serve a different purpose
3
than preliminary objections in a civil action In re a Condemnation Proceeding by South Whitehall
Twp 822 A2d 142 143 (Pa Commw Ct 2003) Per Section 306(a)(3) of the Pennsylvania
Eminent Domain Code preliminary objections in condemnation proceedings are limited to
challenging the following (1) power or right of the condemnor to condemn (2) sufficiency of the
security (3) the declaration of taking or (4) any other procedure followed by the condemnor
Condemnees John Bennett MD and Nance Di Rocco by and through undersigned counsel
hereby assert the following preliminary objections to the condemnation filed in the above-docketed
matter
1 Condemnees own property commonly known as 1835 County Line Road
Villanova Pa 19085 (tax parcel no 40-00-12868-00- 7) (the Property)
2 The Property consists of approximately 106197 acres of land and contains two
buildings
3 In May or June of 2018 Villanova Universitys President Father Peter Donahue
verbally offered to have the University buy the property for $12 million dollars and agreed to have
the proper paperwork drawn-up
4 Lower Merion School District (LMSD) heard that the University was interested
in buying the Property for $12 million dollars
5 On or about June 27 2019 the Superintendent of LMSD Rober L Copeland
reached out to Father Donahue and in an attempt to reduce the purchase price of the Property told
Father Donahue that $12 million dollars is too much for the Property
6 Copeland told Father Donahue that LMSD was interested in buying the Property
from the Condemnees
7 Copeland then told Father Donahue that they valued the Property at $8 million
4
dollars
8 Father Donahue then met with members of his cabinet and trustees who directed
him to get an independent assessment of the value
9 Father Donahue relayed to Condemnees that the University was going to delay their
offer letter because the University was not interested in appearing hostile or trying to block LMSD
especially with all the flair up over Stoneleigh
10 However Father Donahue remained interested pending the assessment of value
11 On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
12 On or about November 7 2018 the University and Condemnees entered into and
executed an agreement of sale with a purchase price of $9650000 Closing was scheduled for
January 4 2019
13 The agreement was contingent upon LMSD not taking the property via eminent
domain
14 LMSD had reached an agreement with the owner of a 56-acre property on Spring
Mill Road that was to be used for fields instead of Condemnees Property
15 On or about December 18 2018 Condemnee John Bennett LMSD real estate agent
Stuart Dessner and Superintendent Robert Copeland met to discuss the status of things
16 They discussed the LMSDs agreement to buy the 56 acre Spring Mill Road
property which the LMSD already agreed to buy and which would serve their recreational needs
adequately
17 Copeland expressed the LMSDs desire to landbank Condemnees property A
landbank is a large body of land held for future development or disposal
5
18 Ultimately if LMSD did not need Condemnees Property and the Spring Mill Road
property Dessner stated that LMSD could always sell it to Villanova University
19 Before ending the meeting Condemnee John Bennett gave Copeland and Dessner a
copy of his Purchase Agreement with Villanova University with the understanding that it would
remain confidential
20 Condemnee also informed Dessner and Copeland that the University would pull-
out of their Agreement of Sale if Condemnees were able to reach an agreement with LMSD
21 Unbeknownst to Condemnees on December 21 2018 (three days after Condemnee
John Bennett gave Dessner and Copeland confidential copies of the Universitys Agreement of
Sale) the School Board convened and passed a Resolution to condemn the Property
22 In a press released published that same day the School Board explained its illegal
intention as an attempt to thwart the purchase of the Property by Villanova University and to
maintain the tax base stating the condemnation will keep the property in use for the residents of
Lower Merion Township and Narbeth rather than enabling Villanova University to take the
property off the tax rolls for its private development use
23 LMSD explained further that although the sellers had indicated the District offers
were basically acceptable with minor revisions the agreements of sale were never returned to the
District
24 President of the Lower Merion Board of School Directors Dr Melissa Gilbert said
Im confident our residents would rather see the land being used by their neighbors than by
college students who dont live in Lower Merion or Narberth
25 The press release also stated that the Property would not actually be needed until
construction began in 2023
6
26 LMSD has no definite plans formulated as to the use to be made of the condemned
property No specifications as to the proposed building have yet been indicated Nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment or any other suitable investigation leading
to an intelligent informed judgment by the Condernnor
27 The Resolution authorized the payment of $9950000 and a lease permitting
Condemnees to reside on and occupy the Property until May 2023 (ie 7pprox 5 years)
28 On December 21 2018 Villanovas Counsel informed Condernnees that LMSD
passed the condemnation Resolution and suggested the agreement of sale be terminated or that
closing be pushed back to January 21 2019 to allow the school district more time to reach an
amicable agreement with Condemnees
29 On December 21 2018 LMSD formally took title to Condemnees Property by
filing a Declaration of Taking in the Montgomery County Court of Common Pleas
30 The Declaration of Taking stated vaguely that the Property was taken for school
district purposes as provide for by the resolution specifically for the purpose of utilizing said land
in conjunction with the construction of school buildings related facilities and necessary
improvements
31 Condernnees later learned the reason for Condernnors quick condemnation
Condemnees present counsel informed them that the Public School Code denies school districts
the right to take by condemnation land belonging to any incorporated institution of learning
such as Villanova University 24 PS sect 7-721 Therefore if Villanova University had closed on
7
the deal on January 4 2019 as planned LMSD would not have been able to condemn the Property
from Villanova University
32 Thus LMSD abused its eminent domain authority by taking advantage of
Condemnee John Bennetts confidential disclosure of his Purchase Agreement with Villanova that
he disclosed in good faith Condemnee John Bennett mistakenly believed LMSD was engaging in
good faith negotiations
33 On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD
attorney Daniel Mita to discuss the case
34 Attorney Mita emphasized to Cohen that if Condemnees did not agree to LMSDs
Purchase Agreement than Condemnees would be left without a lease which meant they would have
to quickly move
35 Attorney Mita emphasized that if the Condemnees did not agree the Condemnees
granddaughter MB who resides with them would not be able to attend LMSD
36 This highlights the hardship eminent domain places upon individuals and their
families and underscores why the abuse of such an awesome power should not be tolerated by this
Court
37 Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 property until May 2023
38 The 1800 West Montgomery Avenue property would provide easy access to the
Condemnees property
39 Also of note is that LMSD terminated the ill-informed Agreement of Sale for the
8
Spring Mill property on January 14 2019 further evidencing the lack of suitable investigation
leading to an intelligent informed judgment by the Condemnor
40 In accordance with Section 306 of the Pennsylvania Eminent Domain Code the
Condemnees file the following preliminary objections to the Condemnors Declaration of Taking
PRELIMINARY OBJECTIONS
THE POWER AND RIGHT TO CONDEMN
41 The Condemnees object to the power or right of LMSD to condemn
42 The power of eminent domain is the power to take property for a public use without
the consent of the owner of the property interest Eminent domain is not conferred by the
constitution It is a right inherent in the state as sovereign and is limited by the constitution In re
Condemnation of 110 Washington Street~ 767 A2d 1154 (Pa Commw Ct 2001) appeal denied
788 A2d 3 79 ( emphasis added) The Pennsylvania Constitution provides nor shall private
property be taken or applied to public use without authority of law and without just compensation
being first made or secured Pa Const art I sect 10 The United States Constitution provides
nor shall private property be taken for public use without just compensation US Const
Amendment V The Fifth Amendments prohibition against the taking of private property for
public use without just compensation applies against the States through the Fourteenth
Amendment Texaco Inc v Short 454 US 516523 n 11 (1982) Webbs Fabulous Pharmacies
_Inc v Beckwith 449 US 155 160 (1908)
43 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute and because the
9
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating an abuse of discretion
Eubling Statute
44 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose but instead was to thwart the sale of the Property to
Villanova from whom LMSD could not legally condemn
45 The legislature may delegate the right to exercise eminent domain power but the
body to which the power is entrusted has no authority beyond that which is legislatively granted
Marple Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Commw Ct 2004)
middotNegotiations
46 The Public School Code permits a school district to condemn property when it
cannot agree on the terms of its purchase with the owner or owners 24 PS sect 7-721
4 7 School directors cannot pass resolutions effecting condemnation until there has
been a failure to agree to terms of purchase with owner of realty selected for school purposes Jury
v Wiest 193 A 5 7 (Pa 1937)
48 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because Condemnor and Condemnee did not disagree on the terms of the
purchase and were still negotiating
10
Not for School Purposes
49 The Public School Code permits LMSD to condemn for school purposes 24 PS
sect 7-721
50 The legislature has provided school district boards of directors with power to
acquire by condemnation real estate it may deem necessary to furnish school buildings or other
suitable sites for proper school purposes 24 PS sect 7-703
51 Our State Supreme Court has directed that a taking may be examined for its true
purpose and not just the purpose as stated in the declaration of taking Middletown Tp V Lands
of Stone 939 A2d 331 (Pa 2007)
52 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because the condemnation was not for school purposes
Fraud Collusion Bad Faith or Arbitran Action Eguatin2 an Abuse of Discretion
53 A Condemnors decision to condemn may be overturned where the record shows
fraud collusion bad faith or arbitrary action equating an abuse of discretion Weber v City
of Philadelphia 262 A2d 297299 (1970)(emphasis added)
54 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Code because the Condemnor s decision to
condemn was the result of fraud collusion bad faith or arbitrary constituting an abuse of
discretion
Suitable Investi2ation Leading to an Intelligent lnfonned Jud2111ent
11
55 Unless the property is acquired after a suitable investigation leading to an
intelligent informed judgment by the condemnor the condemnation is invalid In re Scho Dist
Of Pittsburg 244 A2d 42 46 (Pa 1968) ( citing Winger v Aires 89 A2d 521 (Pa 1952)
56 The Condemnor failed to do a suitable investigation leading to an intelligent
informed judgment by the condemnor because LMSD has no definite plans formulated as to the
use to be made of the condemned property no specifications as to the proposed building have yet
been indicated nor has any definitive location of the tract been designated for the intended
structure no estimate of construction is yet available no wetlands study has been completed nor
a final development plan a final architectural plan a final engineering plan proper zoning
approval a thorough needs assessment nor any other due diligence measures
ExcessiveUnnecessary Taking
57 Condemnor may not appropriate a greater amount of property than is reasonably
required for contemplated purpose Aweal ofWaite 641 A2d 25 (Pa Commw Ct 1994)
58 A condemnation may be overturned if it is found to be excessive Estate of Rochez
by Goslin 558 A2d 605 (Pa Commw Ct 1989) amended on reconsideration 566 A2d 631 (Pa
Commw Ct 1989)
59 The taking is excessiveunnecessary because the Condemnor only asserted a need
for 56 acres for fields originally whereas the Condemnees property is 106 acres
Future Use Within a Reasonable Time
60 Land may be condemned for future expansion even if it cannot presently be used
for the purposes stated in the declaration of taking as long as the land will in good faith be necessary
12
for future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324
(Pa Commw Ct 1977)
61 Condemnees property is not needed for a future use within a reasonable time
because Condemnor is leasing the property back to Condemnee for 5 years and is based on
assumptions and possibilities that have not been proven by the evidence
RELIEF REQUESTED
62 Pursuant to the Pennsylvania Eminent Domain Code the court shall determine
promptly all preliminary objections and make preliminary and final orders and decrees as justice
shall require including the revesting of title 26 Pa CSA sect 306 (f)(l)
63 Moreover ifan issue of fact is raised the court shall take evidence by depositions
or otherwise 26 Pa CSA sect 306 (f)(2)
64 When preliminary objections raise an issue of fact the court must hold an
evidentiary hearing 26 Pa CSA sect 306(f)(2) Ameal ofMcKonly 618 A2d 1169 (Pa Commw
Ct 1992)
65 The Condemnees have raised issues of fact in these Preliminary Objections
66 Discovery and an evidentiary hearing are required
67 Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
68 The termination of condemnation
69 Revesting of title in the name of John Bennett MD and Nance Di Rocco
70 The reimbursement of costs and expenses to Condemnee by Condemnor including
13
reasonable appraisal attorney and engineering fees and other costs and expenses actually incurred
because of the condemnation proceedings 26 Pa CSA sect 306(g)
71 Condemnees file concurrently herewith a Brief in Support per local rule 1028( c)
and incorporate it herein by reference
WHEREFORE for the reasons stated above Condemnees respectfully submit these
preliminary objections and request that the Court grant the reliefrequested above
Respectfully submitted
FAHERTY LAW FIRM
Dated February 7 2019
Michael F Faherty Esquire Atty Id 55860 mfaherty(fahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000 Counsel for Condemnees
14
CERTIFICATE OF SERVICE
I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing
document filed on February _J_ 2019 was sent to the following individuals via first class mail
on February _7_ 2019
Drew K Kapur Esq ID No 35018 Duane Morris LLP 30 South 17th Street Philadelphia PA 19103-4196 dkkapurduanemorriscom 215-979-1000 Attorney for Condemnor
Michael F Faherty Esq Bar ID 55860 Anthony M Corby Esq Bar ID 316852 75 Cedar Ave Hershey PA 17033 717-256-3000 mfahertvfahertylawfinncom acorbyfabertylawfirmco Attorney for Condemnees
15
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6(1) o C g ~ CERTIFICATE OF COMPLIANCE 00 0 g il tJ I certify that this filing complies with the provisions of the Public Access Policy of the ~i 0 C
~g Un(fied Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that 111
-g E 0 e ~ require filing confidential information and documents differently than non-confidential
~ ~ middot12 g information and documents -~ sect s e 0
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sect~ s -~ t Respectfully submitted ci ejg
~~ FAHERTY LAW FIRM secti ~ liE
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i ~ Michael F Faherty Esquire ~ ~ Attorney Id 55860 ~ ~ 7 5 Cedar A venue ~ j Hershey Pennsylvania 17033
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~ g Tel (717)256-3000 ~ 8 mfahertyfahertylawfirmcom ~ f Attorney for Plaintiffs
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- ~ ci ~ i IN RE LOWER MERION SCHOOL sect~ DISTRICT CONDEMNATION OF LAND Ii E KNOWN TO BE THE PROPERTY OF JOHN -~
pound g A BENNETT MD AND NANCE DI j ~ ROCCO KNOWN AS A PORTION OF TAX i II) Ill
~ MAP PARCEL NO 40-00-12868-00-7 ~ ~ LOWER MERION TOWNSHIP ~ ~ MONTGOMERY COUNTY ~ j PENNSYLVANIA FOR SCHOOL o ~ PURPOSES ~g ~sect II 0
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~ middot CONDEMNEES BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS TO ~ ~ DECLARATION OF TAKING O)~ -0 II)
~ 5 Condemnees John Bennett MD and Nance Di Rocco by and through their attorney ~8 ~~ o ic Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm hereby ~-g l Ill
sect ~ submit this Brief in Support of Preliminary Objections to the Declaration of Taking The SQgt e ci o~ ~ (I) Preliminary Objections are sectpound 8o ~~ CSA sect 306 (I)
e8
W~ ~ _u l3
COUNTY PENNSYLVANIA
EMINENT DOMAIN - IN REM
middot NO 2018-29523 CIVIL
fi 1led pursuant to the Pennsylvania Eminent Domain Code 26 Pa
MATTER BEFORE THE COURT
~ - 1 Pleading Before the Court Condemnee s Preliminary Objections to Declaration of li ~~
8 0~
~ Taking ff ~o g E 2 Relief Requested ~Jg ClO Igt s ~~ 1 =It - Bl -a
~~
a Discovery and an evidentiary hearing
b Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
c The termination of condemnation
d Revesting of title in the name of John Bennett MD and Nance Di Rocco
e The reimbursement of costs and expenses to Condemnee by Condemnor including
reasonable appraisal attorney and engineering fees and other costs and expenses
actually incurred because of the condemnation proceedings 26 Pa CSA sect 306(g)
STATEMENT OF QUESTIONS INVOLVED
Question 1 Whether Lower Merion School District has the power and right to condemn
Condemnees property when the enabling Statute does not grant Condemnor the right to use
eminent domain and when the Condemnors decision to condemn was done in bad faith and was
arbitrary action equating an abuse of discretion
Suggested Answer No
FACTS
Condemnees own property commonly known as 1835 County Line Road Villanova Pa
19085 (tax parcel no 40-00-12868-00- 7) (the Property) The Property consists of approximately
106197 acres of land and contains two buildings The main building is an approximately 20000
sq ft mansion built in 1920 The second building is approximately 3000 sq ft and built in
approximately 2015 The land is situated next to Villanova University Condemnees purchased the
2
Property in 1997 and have resided there ever since Also currently residing at the property is the
Condemnees minor granddaughter MB
During this time Condemnees became close friends with Villanovas President Father
Peter Donahue Condemnees have hosted various University events at their home over the years
During this time Father Donahue conveyed the Universitys interest in purchasing the Property
Condemnees liked the idea of their property going to the University and always felt that someday
when they were ready to sell that they would sell it to the University Sometime around May of
2018 the Condemnees were contacted by real estate agent Stuart Dessner who relayed that the
Lower Merion School District (LMSD) might be interested in buying their property and their
neighbors property Preferring to sell to the University and knowing that Father Donahue always
wanted the University to have the Property Condemnees approached him and asked if the
University would be interested in buying the Property Father Donahue verbally offered $12
million dollars for the Property on behalf of the University and agreed to have the proper
paperwork drawn-up The University intended to maintain the historic buildings utilizing it in a
way that would not involve razing the property
LMSD learned that the University was interested in buying the Property for $12 million
dollars On or about June 27 2019 the Superintendent ofLMSD Rober L Copeland reached out
to Father Donahue and in an attempt to reduce the purchase price of the Property told Father
Donahue that $12 million dollars is too much for the Property Exhibit 1 Copeland told Father
Donahue that LMSD was interested in buying the Property from the Condemnees Id He wanted
to know how interested Villanova was in purchasing the property and how much Villanova would
be willing to pay Id Copeland then told Father Donahue that they valued the Property at $8 million
dollars Id Father Donahue then met with members of his cabinet and trustees who directed him
3
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
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~ sect (I)
6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
~~
acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System 1of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum~nts -- -
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
than preliminary objections in a civil action In re a Condemnation Proceeding by South Whitehall
Twp 822 A2d 142 143 (Pa Commw Ct 2003) Per Section 306(a)(3) of the Pennsylvania
Eminent Domain Code preliminary objections in condemnation proceedings are limited to
challenging the following (1) power or right of the condemnor to condemn (2) sufficiency of the
security (3) the declaration of taking or (4) any other procedure followed by the condemnor
Condemnees John Bennett MD and Nance Di Rocco by and through undersigned counsel
hereby assert the following preliminary objections to the condemnation filed in the above-docketed
matter
1 Condemnees own property commonly known as 1835 County Line Road
Villanova Pa 19085 (tax parcel no 40-00-12868-00- 7) (the Property)
2 The Property consists of approximately 106197 acres of land and contains two
buildings
3 In May or June of 2018 Villanova Universitys President Father Peter Donahue
verbally offered to have the University buy the property for $12 million dollars and agreed to have
the proper paperwork drawn-up
4 Lower Merion School District (LMSD) heard that the University was interested
in buying the Property for $12 million dollars
5 On or about June 27 2019 the Superintendent of LMSD Rober L Copeland
reached out to Father Donahue and in an attempt to reduce the purchase price of the Property told
Father Donahue that $12 million dollars is too much for the Property
6 Copeland told Father Donahue that LMSD was interested in buying the Property
from the Condemnees
7 Copeland then told Father Donahue that they valued the Property at $8 million
4
dollars
8 Father Donahue then met with members of his cabinet and trustees who directed
him to get an independent assessment of the value
9 Father Donahue relayed to Condemnees that the University was going to delay their
offer letter because the University was not interested in appearing hostile or trying to block LMSD
especially with all the flair up over Stoneleigh
10 However Father Donahue remained interested pending the assessment of value
11 On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
12 On or about November 7 2018 the University and Condemnees entered into and
executed an agreement of sale with a purchase price of $9650000 Closing was scheduled for
January 4 2019
13 The agreement was contingent upon LMSD not taking the property via eminent
domain
14 LMSD had reached an agreement with the owner of a 56-acre property on Spring
Mill Road that was to be used for fields instead of Condemnees Property
15 On or about December 18 2018 Condemnee John Bennett LMSD real estate agent
Stuart Dessner and Superintendent Robert Copeland met to discuss the status of things
16 They discussed the LMSDs agreement to buy the 56 acre Spring Mill Road
property which the LMSD already agreed to buy and which would serve their recreational needs
adequately
17 Copeland expressed the LMSDs desire to landbank Condemnees property A
landbank is a large body of land held for future development or disposal
5
18 Ultimately if LMSD did not need Condemnees Property and the Spring Mill Road
property Dessner stated that LMSD could always sell it to Villanova University
19 Before ending the meeting Condemnee John Bennett gave Copeland and Dessner a
copy of his Purchase Agreement with Villanova University with the understanding that it would
remain confidential
20 Condemnee also informed Dessner and Copeland that the University would pull-
out of their Agreement of Sale if Condemnees were able to reach an agreement with LMSD
21 Unbeknownst to Condemnees on December 21 2018 (three days after Condemnee
John Bennett gave Dessner and Copeland confidential copies of the Universitys Agreement of
Sale) the School Board convened and passed a Resolution to condemn the Property
22 In a press released published that same day the School Board explained its illegal
intention as an attempt to thwart the purchase of the Property by Villanova University and to
maintain the tax base stating the condemnation will keep the property in use for the residents of
Lower Merion Township and Narbeth rather than enabling Villanova University to take the
property off the tax rolls for its private development use
23 LMSD explained further that although the sellers had indicated the District offers
were basically acceptable with minor revisions the agreements of sale were never returned to the
District
24 President of the Lower Merion Board of School Directors Dr Melissa Gilbert said
Im confident our residents would rather see the land being used by their neighbors than by
college students who dont live in Lower Merion or Narberth
25 The press release also stated that the Property would not actually be needed until
construction began in 2023
6
26 LMSD has no definite plans formulated as to the use to be made of the condemned
property No specifications as to the proposed building have yet been indicated Nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment or any other suitable investigation leading
to an intelligent informed judgment by the Condernnor
27 The Resolution authorized the payment of $9950000 and a lease permitting
Condemnees to reside on and occupy the Property until May 2023 (ie 7pprox 5 years)
28 On December 21 2018 Villanovas Counsel informed Condernnees that LMSD
passed the condemnation Resolution and suggested the agreement of sale be terminated or that
closing be pushed back to January 21 2019 to allow the school district more time to reach an
amicable agreement with Condemnees
29 On December 21 2018 LMSD formally took title to Condemnees Property by
filing a Declaration of Taking in the Montgomery County Court of Common Pleas
30 The Declaration of Taking stated vaguely that the Property was taken for school
district purposes as provide for by the resolution specifically for the purpose of utilizing said land
in conjunction with the construction of school buildings related facilities and necessary
improvements
31 Condernnees later learned the reason for Condernnors quick condemnation
Condemnees present counsel informed them that the Public School Code denies school districts
the right to take by condemnation land belonging to any incorporated institution of learning
such as Villanova University 24 PS sect 7-721 Therefore if Villanova University had closed on
7
the deal on January 4 2019 as planned LMSD would not have been able to condemn the Property
from Villanova University
32 Thus LMSD abused its eminent domain authority by taking advantage of
Condemnee John Bennetts confidential disclosure of his Purchase Agreement with Villanova that
he disclosed in good faith Condemnee John Bennett mistakenly believed LMSD was engaging in
good faith negotiations
33 On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD
attorney Daniel Mita to discuss the case
34 Attorney Mita emphasized to Cohen that if Condemnees did not agree to LMSDs
Purchase Agreement than Condemnees would be left without a lease which meant they would have
to quickly move
35 Attorney Mita emphasized that if the Condemnees did not agree the Condemnees
granddaughter MB who resides with them would not be able to attend LMSD
36 This highlights the hardship eminent domain places upon individuals and their
families and underscores why the abuse of such an awesome power should not be tolerated by this
Court
37 Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 property until May 2023
38 The 1800 West Montgomery Avenue property would provide easy access to the
Condemnees property
39 Also of note is that LMSD terminated the ill-informed Agreement of Sale for the
8
Spring Mill property on January 14 2019 further evidencing the lack of suitable investigation
leading to an intelligent informed judgment by the Condemnor
40 In accordance with Section 306 of the Pennsylvania Eminent Domain Code the
Condemnees file the following preliminary objections to the Condemnors Declaration of Taking
PRELIMINARY OBJECTIONS
THE POWER AND RIGHT TO CONDEMN
41 The Condemnees object to the power or right of LMSD to condemn
42 The power of eminent domain is the power to take property for a public use without
the consent of the owner of the property interest Eminent domain is not conferred by the
constitution It is a right inherent in the state as sovereign and is limited by the constitution In re
Condemnation of 110 Washington Street~ 767 A2d 1154 (Pa Commw Ct 2001) appeal denied
788 A2d 3 79 ( emphasis added) The Pennsylvania Constitution provides nor shall private
property be taken or applied to public use without authority of law and without just compensation
being first made or secured Pa Const art I sect 10 The United States Constitution provides
nor shall private property be taken for public use without just compensation US Const
Amendment V The Fifth Amendments prohibition against the taking of private property for
public use without just compensation applies against the States through the Fourteenth
Amendment Texaco Inc v Short 454 US 516523 n 11 (1982) Webbs Fabulous Pharmacies
_Inc v Beckwith 449 US 155 160 (1908)
43 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute and because the
9
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating an abuse of discretion
Eubling Statute
44 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose but instead was to thwart the sale of the Property to
Villanova from whom LMSD could not legally condemn
45 The legislature may delegate the right to exercise eminent domain power but the
body to which the power is entrusted has no authority beyond that which is legislatively granted
Marple Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Commw Ct 2004)
middotNegotiations
46 The Public School Code permits a school district to condemn property when it
cannot agree on the terms of its purchase with the owner or owners 24 PS sect 7-721
4 7 School directors cannot pass resolutions effecting condemnation until there has
been a failure to agree to terms of purchase with owner of realty selected for school purposes Jury
v Wiest 193 A 5 7 (Pa 1937)
48 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because Condemnor and Condemnee did not disagree on the terms of the
purchase and were still negotiating
10
Not for School Purposes
49 The Public School Code permits LMSD to condemn for school purposes 24 PS
sect 7-721
50 The legislature has provided school district boards of directors with power to
acquire by condemnation real estate it may deem necessary to furnish school buildings or other
suitable sites for proper school purposes 24 PS sect 7-703
51 Our State Supreme Court has directed that a taking may be examined for its true
purpose and not just the purpose as stated in the declaration of taking Middletown Tp V Lands
of Stone 939 A2d 331 (Pa 2007)
52 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because the condemnation was not for school purposes
Fraud Collusion Bad Faith or Arbitran Action Eguatin2 an Abuse of Discretion
53 A Condemnors decision to condemn may be overturned where the record shows
fraud collusion bad faith or arbitrary action equating an abuse of discretion Weber v City
of Philadelphia 262 A2d 297299 (1970)(emphasis added)
54 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Code because the Condemnor s decision to
condemn was the result of fraud collusion bad faith or arbitrary constituting an abuse of
discretion
Suitable Investi2ation Leading to an Intelligent lnfonned Jud2111ent
11
55 Unless the property is acquired after a suitable investigation leading to an
intelligent informed judgment by the condemnor the condemnation is invalid In re Scho Dist
Of Pittsburg 244 A2d 42 46 (Pa 1968) ( citing Winger v Aires 89 A2d 521 (Pa 1952)
56 The Condemnor failed to do a suitable investigation leading to an intelligent
informed judgment by the condemnor because LMSD has no definite plans formulated as to the
use to be made of the condemned property no specifications as to the proposed building have yet
been indicated nor has any definitive location of the tract been designated for the intended
structure no estimate of construction is yet available no wetlands study has been completed nor
a final development plan a final architectural plan a final engineering plan proper zoning
approval a thorough needs assessment nor any other due diligence measures
ExcessiveUnnecessary Taking
57 Condemnor may not appropriate a greater amount of property than is reasonably
required for contemplated purpose Aweal ofWaite 641 A2d 25 (Pa Commw Ct 1994)
58 A condemnation may be overturned if it is found to be excessive Estate of Rochez
by Goslin 558 A2d 605 (Pa Commw Ct 1989) amended on reconsideration 566 A2d 631 (Pa
Commw Ct 1989)
59 The taking is excessiveunnecessary because the Condemnor only asserted a need
for 56 acres for fields originally whereas the Condemnees property is 106 acres
Future Use Within a Reasonable Time
60 Land may be condemned for future expansion even if it cannot presently be used
for the purposes stated in the declaration of taking as long as the land will in good faith be necessary
12
for future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324
(Pa Commw Ct 1977)
61 Condemnees property is not needed for a future use within a reasonable time
because Condemnor is leasing the property back to Condemnee for 5 years and is based on
assumptions and possibilities that have not been proven by the evidence
RELIEF REQUESTED
62 Pursuant to the Pennsylvania Eminent Domain Code the court shall determine
promptly all preliminary objections and make preliminary and final orders and decrees as justice
shall require including the revesting of title 26 Pa CSA sect 306 (f)(l)
63 Moreover ifan issue of fact is raised the court shall take evidence by depositions
or otherwise 26 Pa CSA sect 306 (f)(2)
64 When preliminary objections raise an issue of fact the court must hold an
evidentiary hearing 26 Pa CSA sect 306(f)(2) Ameal ofMcKonly 618 A2d 1169 (Pa Commw
Ct 1992)
65 The Condemnees have raised issues of fact in these Preliminary Objections
66 Discovery and an evidentiary hearing are required
67 Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
68 The termination of condemnation
69 Revesting of title in the name of John Bennett MD and Nance Di Rocco
70 The reimbursement of costs and expenses to Condemnee by Condemnor including
13
reasonable appraisal attorney and engineering fees and other costs and expenses actually incurred
because of the condemnation proceedings 26 Pa CSA sect 306(g)
71 Condemnees file concurrently herewith a Brief in Support per local rule 1028( c)
and incorporate it herein by reference
WHEREFORE for the reasons stated above Condemnees respectfully submit these
preliminary objections and request that the Court grant the reliefrequested above
Respectfully submitted
FAHERTY LAW FIRM
Dated February 7 2019
Michael F Faherty Esquire Atty Id 55860 mfaherty(fahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000 Counsel for Condemnees
14
CERTIFICATE OF SERVICE
I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing
document filed on February _J_ 2019 was sent to the following individuals via first class mail
on February _7_ 2019
Drew K Kapur Esq ID No 35018 Duane Morris LLP 30 South 17th Street Philadelphia PA 19103-4196 dkkapurduanemorriscom 215-979-1000 Attorney for Condemnor
Michael F Faherty Esq Bar ID 55860 Anthony M Corby Esq Bar ID 316852 75 Cedar Ave Hershey PA 17033 717-256-3000 mfahertvfahertylawfinncom acorbyfabertylawfirmco Attorney for Condemnees
15
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6(1) o C g ~ CERTIFICATE OF COMPLIANCE 00 0 g il tJ I certify that this filing complies with the provisions of the Public Access Policy of the ~i 0 C
~g Un(fied Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that 111
-g E 0 e ~ require filing confidential information and documents differently than non-confidential
~ ~ middot12 g information and documents -~ sect s e 0
osect (I) C S C
sect~ s -~ t Respectfully submitted ci ejg
~~ FAHERTY LAW FIRM secti ~ liE
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osect ~ ~ IN THE COURT OF COMMON PLEAS OF MONTGOMERY sect ~ CIVIL DIVISION s II)
- ~ ci ~ i IN RE LOWER MERION SCHOOL sect~ DISTRICT CONDEMNATION OF LAND Ii E KNOWN TO BE THE PROPERTY OF JOHN -~
pound g A BENNETT MD AND NANCE DI j ~ ROCCO KNOWN AS A PORTION OF TAX i II) Ill
~ MAP PARCEL NO 40-00-12868-00-7 ~ ~ LOWER MERION TOWNSHIP ~ ~ MONTGOMERY COUNTY ~ j PENNSYLVANIA FOR SCHOOL o ~ PURPOSES ~g ~sect II 0
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~ middot CONDEMNEES BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS TO ~ ~ DECLARATION OF TAKING O)~ -0 II)
~ 5 Condemnees John Bennett MD and Nance Di Rocco by and through their attorney ~8 ~~ o ic Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm hereby ~-g l Ill
sect ~ submit this Brief in Support of Preliminary Objections to the Declaration of Taking The SQgt e ci o~ ~ (I) Preliminary Objections are sectpound 8o ~~ CSA sect 306 (I)
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COUNTY PENNSYLVANIA
EMINENT DOMAIN - IN REM
middot NO 2018-29523 CIVIL
fi 1led pursuant to the Pennsylvania Eminent Domain Code 26 Pa
MATTER BEFORE THE COURT
~ - 1 Pleading Before the Court Condemnee s Preliminary Objections to Declaration of li ~~
8 0~
~ Taking ff ~o g E 2 Relief Requested ~Jg ClO Igt s ~~ 1 =It - Bl -a
~~
a Discovery and an evidentiary hearing
b Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
c The termination of condemnation
d Revesting of title in the name of John Bennett MD and Nance Di Rocco
e The reimbursement of costs and expenses to Condemnee by Condemnor including
reasonable appraisal attorney and engineering fees and other costs and expenses
actually incurred because of the condemnation proceedings 26 Pa CSA sect 306(g)
STATEMENT OF QUESTIONS INVOLVED
Question 1 Whether Lower Merion School District has the power and right to condemn
Condemnees property when the enabling Statute does not grant Condemnor the right to use
eminent domain and when the Condemnors decision to condemn was done in bad faith and was
arbitrary action equating an abuse of discretion
Suggested Answer No
FACTS
Condemnees own property commonly known as 1835 County Line Road Villanova Pa
19085 (tax parcel no 40-00-12868-00- 7) (the Property) The Property consists of approximately
106197 acres of land and contains two buildings The main building is an approximately 20000
sq ft mansion built in 1920 The second building is approximately 3000 sq ft and built in
approximately 2015 The land is situated next to Villanova University Condemnees purchased the
2
Property in 1997 and have resided there ever since Also currently residing at the property is the
Condemnees minor granddaughter MB
During this time Condemnees became close friends with Villanovas President Father
Peter Donahue Condemnees have hosted various University events at their home over the years
During this time Father Donahue conveyed the Universitys interest in purchasing the Property
Condemnees liked the idea of their property going to the University and always felt that someday
when they were ready to sell that they would sell it to the University Sometime around May of
2018 the Condemnees were contacted by real estate agent Stuart Dessner who relayed that the
Lower Merion School District (LMSD) might be interested in buying their property and their
neighbors property Preferring to sell to the University and knowing that Father Donahue always
wanted the University to have the Property Condemnees approached him and asked if the
University would be interested in buying the Property Father Donahue verbally offered $12
million dollars for the Property on behalf of the University and agreed to have the proper
paperwork drawn-up The University intended to maintain the historic buildings utilizing it in a
way that would not involve razing the property
LMSD learned that the University was interested in buying the Property for $12 million
dollars On or about June 27 2019 the Superintendent ofLMSD Rober L Copeland reached out
to Father Donahue and in an attempt to reduce the purchase price of the Property told Father
Donahue that $12 million dollars is too much for the Property Exhibit 1 Copeland told Father
Donahue that LMSD was interested in buying the Property from the Condemnees Id He wanted
to know how interested Villanova was in purchasing the property and how much Villanova would
be willing to pay Id Copeland then told Father Donahue that they valued the Property at $8 million
dollars Id Father Donahue then met with members of his cabinet and trustees who directed him
3
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
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6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
~~
acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
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-
dollars
8 Father Donahue then met with members of his cabinet and trustees who directed
him to get an independent assessment of the value
9 Father Donahue relayed to Condemnees that the University was going to delay their
offer letter because the University was not interested in appearing hostile or trying to block LMSD
especially with all the flair up over Stoneleigh
10 However Father Donahue remained interested pending the assessment of value
11 On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
12 On or about November 7 2018 the University and Condemnees entered into and
executed an agreement of sale with a purchase price of $9650000 Closing was scheduled for
January 4 2019
13 The agreement was contingent upon LMSD not taking the property via eminent
domain
14 LMSD had reached an agreement with the owner of a 56-acre property on Spring
Mill Road that was to be used for fields instead of Condemnees Property
15 On or about December 18 2018 Condemnee John Bennett LMSD real estate agent
Stuart Dessner and Superintendent Robert Copeland met to discuss the status of things
16 They discussed the LMSDs agreement to buy the 56 acre Spring Mill Road
property which the LMSD already agreed to buy and which would serve their recreational needs
adequately
17 Copeland expressed the LMSDs desire to landbank Condemnees property A
landbank is a large body of land held for future development or disposal
5
18 Ultimately if LMSD did not need Condemnees Property and the Spring Mill Road
property Dessner stated that LMSD could always sell it to Villanova University
19 Before ending the meeting Condemnee John Bennett gave Copeland and Dessner a
copy of his Purchase Agreement with Villanova University with the understanding that it would
remain confidential
20 Condemnee also informed Dessner and Copeland that the University would pull-
out of their Agreement of Sale if Condemnees were able to reach an agreement with LMSD
21 Unbeknownst to Condemnees on December 21 2018 (three days after Condemnee
John Bennett gave Dessner and Copeland confidential copies of the Universitys Agreement of
Sale) the School Board convened and passed a Resolution to condemn the Property
22 In a press released published that same day the School Board explained its illegal
intention as an attempt to thwart the purchase of the Property by Villanova University and to
maintain the tax base stating the condemnation will keep the property in use for the residents of
Lower Merion Township and Narbeth rather than enabling Villanova University to take the
property off the tax rolls for its private development use
23 LMSD explained further that although the sellers had indicated the District offers
were basically acceptable with minor revisions the agreements of sale were never returned to the
District
24 President of the Lower Merion Board of School Directors Dr Melissa Gilbert said
Im confident our residents would rather see the land being used by their neighbors than by
college students who dont live in Lower Merion or Narberth
25 The press release also stated that the Property would not actually be needed until
construction began in 2023
6
26 LMSD has no definite plans formulated as to the use to be made of the condemned
property No specifications as to the proposed building have yet been indicated Nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment or any other suitable investigation leading
to an intelligent informed judgment by the Condernnor
27 The Resolution authorized the payment of $9950000 and a lease permitting
Condemnees to reside on and occupy the Property until May 2023 (ie 7pprox 5 years)
28 On December 21 2018 Villanovas Counsel informed Condernnees that LMSD
passed the condemnation Resolution and suggested the agreement of sale be terminated or that
closing be pushed back to January 21 2019 to allow the school district more time to reach an
amicable agreement with Condemnees
29 On December 21 2018 LMSD formally took title to Condemnees Property by
filing a Declaration of Taking in the Montgomery County Court of Common Pleas
30 The Declaration of Taking stated vaguely that the Property was taken for school
district purposes as provide for by the resolution specifically for the purpose of utilizing said land
in conjunction with the construction of school buildings related facilities and necessary
improvements
31 Condernnees later learned the reason for Condernnors quick condemnation
Condemnees present counsel informed them that the Public School Code denies school districts
the right to take by condemnation land belonging to any incorporated institution of learning
such as Villanova University 24 PS sect 7-721 Therefore if Villanova University had closed on
7
the deal on January 4 2019 as planned LMSD would not have been able to condemn the Property
from Villanova University
32 Thus LMSD abused its eminent domain authority by taking advantage of
Condemnee John Bennetts confidential disclosure of his Purchase Agreement with Villanova that
he disclosed in good faith Condemnee John Bennett mistakenly believed LMSD was engaging in
good faith negotiations
33 On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD
attorney Daniel Mita to discuss the case
34 Attorney Mita emphasized to Cohen that if Condemnees did not agree to LMSDs
Purchase Agreement than Condemnees would be left without a lease which meant they would have
to quickly move
35 Attorney Mita emphasized that if the Condemnees did not agree the Condemnees
granddaughter MB who resides with them would not be able to attend LMSD
36 This highlights the hardship eminent domain places upon individuals and their
families and underscores why the abuse of such an awesome power should not be tolerated by this
Court
37 Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 property until May 2023
38 The 1800 West Montgomery Avenue property would provide easy access to the
Condemnees property
39 Also of note is that LMSD terminated the ill-informed Agreement of Sale for the
8
Spring Mill property on January 14 2019 further evidencing the lack of suitable investigation
leading to an intelligent informed judgment by the Condemnor
40 In accordance with Section 306 of the Pennsylvania Eminent Domain Code the
Condemnees file the following preliminary objections to the Condemnors Declaration of Taking
PRELIMINARY OBJECTIONS
THE POWER AND RIGHT TO CONDEMN
41 The Condemnees object to the power or right of LMSD to condemn
42 The power of eminent domain is the power to take property for a public use without
the consent of the owner of the property interest Eminent domain is not conferred by the
constitution It is a right inherent in the state as sovereign and is limited by the constitution In re
Condemnation of 110 Washington Street~ 767 A2d 1154 (Pa Commw Ct 2001) appeal denied
788 A2d 3 79 ( emphasis added) The Pennsylvania Constitution provides nor shall private
property be taken or applied to public use without authority of law and without just compensation
being first made or secured Pa Const art I sect 10 The United States Constitution provides
nor shall private property be taken for public use without just compensation US Const
Amendment V The Fifth Amendments prohibition against the taking of private property for
public use without just compensation applies against the States through the Fourteenth
Amendment Texaco Inc v Short 454 US 516523 n 11 (1982) Webbs Fabulous Pharmacies
_Inc v Beckwith 449 US 155 160 (1908)
43 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute and because the
9
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating an abuse of discretion
Eubling Statute
44 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose but instead was to thwart the sale of the Property to
Villanova from whom LMSD could not legally condemn
45 The legislature may delegate the right to exercise eminent domain power but the
body to which the power is entrusted has no authority beyond that which is legislatively granted
Marple Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Commw Ct 2004)
middotNegotiations
46 The Public School Code permits a school district to condemn property when it
cannot agree on the terms of its purchase with the owner or owners 24 PS sect 7-721
4 7 School directors cannot pass resolutions effecting condemnation until there has
been a failure to agree to terms of purchase with owner of realty selected for school purposes Jury
v Wiest 193 A 5 7 (Pa 1937)
48 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because Condemnor and Condemnee did not disagree on the terms of the
purchase and were still negotiating
10
Not for School Purposes
49 The Public School Code permits LMSD to condemn for school purposes 24 PS
sect 7-721
50 The legislature has provided school district boards of directors with power to
acquire by condemnation real estate it may deem necessary to furnish school buildings or other
suitable sites for proper school purposes 24 PS sect 7-703
51 Our State Supreme Court has directed that a taking may be examined for its true
purpose and not just the purpose as stated in the declaration of taking Middletown Tp V Lands
of Stone 939 A2d 331 (Pa 2007)
52 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because the condemnation was not for school purposes
Fraud Collusion Bad Faith or Arbitran Action Eguatin2 an Abuse of Discretion
53 A Condemnors decision to condemn may be overturned where the record shows
fraud collusion bad faith or arbitrary action equating an abuse of discretion Weber v City
of Philadelphia 262 A2d 297299 (1970)(emphasis added)
54 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Code because the Condemnor s decision to
condemn was the result of fraud collusion bad faith or arbitrary constituting an abuse of
discretion
Suitable Investi2ation Leading to an Intelligent lnfonned Jud2111ent
11
55 Unless the property is acquired after a suitable investigation leading to an
intelligent informed judgment by the condemnor the condemnation is invalid In re Scho Dist
Of Pittsburg 244 A2d 42 46 (Pa 1968) ( citing Winger v Aires 89 A2d 521 (Pa 1952)
56 The Condemnor failed to do a suitable investigation leading to an intelligent
informed judgment by the condemnor because LMSD has no definite plans formulated as to the
use to be made of the condemned property no specifications as to the proposed building have yet
been indicated nor has any definitive location of the tract been designated for the intended
structure no estimate of construction is yet available no wetlands study has been completed nor
a final development plan a final architectural plan a final engineering plan proper zoning
approval a thorough needs assessment nor any other due diligence measures
ExcessiveUnnecessary Taking
57 Condemnor may not appropriate a greater amount of property than is reasonably
required for contemplated purpose Aweal ofWaite 641 A2d 25 (Pa Commw Ct 1994)
58 A condemnation may be overturned if it is found to be excessive Estate of Rochez
by Goslin 558 A2d 605 (Pa Commw Ct 1989) amended on reconsideration 566 A2d 631 (Pa
Commw Ct 1989)
59 The taking is excessiveunnecessary because the Condemnor only asserted a need
for 56 acres for fields originally whereas the Condemnees property is 106 acres
Future Use Within a Reasonable Time
60 Land may be condemned for future expansion even if it cannot presently be used
for the purposes stated in the declaration of taking as long as the land will in good faith be necessary
12
for future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324
(Pa Commw Ct 1977)
61 Condemnees property is not needed for a future use within a reasonable time
because Condemnor is leasing the property back to Condemnee for 5 years and is based on
assumptions and possibilities that have not been proven by the evidence
RELIEF REQUESTED
62 Pursuant to the Pennsylvania Eminent Domain Code the court shall determine
promptly all preliminary objections and make preliminary and final orders and decrees as justice
shall require including the revesting of title 26 Pa CSA sect 306 (f)(l)
63 Moreover ifan issue of fact is raised the court shall take evidence by depositions
or otherwise 26 Pa CSA sect 306 (f)(2)
64 When preliminary objections raise an issue of fact the court must hold an
evidentiary hearing 26 Pa CSA sect 306(f)(2) Ameal ofMcKonly 618 A2d 1169 (Pa Commw
Ct 1992)
65 The Condemnees have raised issues of fact in these Preliminary Objections
66 Discovery and an evidentiary hearing are required
67 Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
68 The termination of condemnation
69 Revesting of title in the name of John Bennett MD and Nance Di Rocco
70 The reimbursement of costs and expenses to Condemnee by Condemnor including
13
reasonable appraisal attorney and engineering fees and other costs and expenses actually incurred
because of the condemnation proceedings 26 Pa CSA sect 306(g)
71 Condemnees file concurrently herewith a Brief in Support per local rule 1028( c)
and incorporate it herein by reference
WHEREFORE for the reasons stated above Condemnees respectfully submit these
preliminary objections and request that the Court grant the reliefrequested above
Respectfully submitted
FAHERTY LAW FIRM
Dated February 7 2019
Michael F Faherty Esquire Atty Id 55860 mfaherty(fahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000 Counsel for Condemnees
14
CERTIFICATE OF SERVICE
I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing
document filed on February _J_ 2019 was sent to the following individuals via first class mail
on February _7_ 2019
Drew K Kapur Esq ID No 35018 Duane Morris LLP 30 South 17th Street Philadelphia PA 19103-4196 dkkapurduanemorriscom 215-979-1000 Attorney for Condemnor
Michael F Faherty Esq Bar ID 55860 Anthony M Corby Esq Bar ID 316852 75 Cedar Ave Hershey PA 17033 717-256-3000 mfahertvfahertylawfinncom acorbyfabertylawfirmco Attorney for Condemnees
15
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6(1) o C g ~ CERTIFICATE OF COMPLIANCE 00 0 g il tJ I certify that this filing complies with the provisions of the Public Access Policy of the ~i 0 C
~g Un(fied Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that 111
-g E 0 e ~ require filing confidential information and documents differently than non-confidential
~ ~ middot12 g information and documents -~ sect s e 0
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sect~ s -~ t Respectfully submitted ci ejg
~~ FAHERTY LAW FIRM secti ~ liE
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i ~ Michael F Faherty Esquire ~ ~ Attorney Id 55860 ~ ~ 7 5 Cedar A venue ~ j Hershey Pennsylvania 17033
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~ g Tel (717)256-3000 ~ 8 mfahertyfahertylawfirmcom ~ f Attorney for Plaintiffs
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osect ~ ~ IN THE COURT OF COMMON PLEAS OF MONTGOMERY sect ~ CIVIL DIVISION s II)
- ~ ci ~ i IN RE LOWER MERION SCHOOL sect~ DISTRICT CONDEMNATION OF LAND Ii E KNOWN TO BE THE PROPERTY OF JOHN -~
pound g A BENNETT MD AND NANCE DI j ~ ROCCO KNOWN AS A PORTION OF TAX i II) Ill
~ MAP PARCEL NO 40-00-12868-00-7 ~ ~ LOWER MERION TOWNSHIP ~ ~ MONTGOMERY COUNTY ~ j PENNSYLVANIA FOR SCHOOL o ~ PURPOSES ~g ~sect II 0
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~ middot CONDEMNEES BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS TO ~ ~ DECLARATION OF TAKING O)~ -0 II)
~ 5 Condemnees John Bennett MD and Nance Di Rocco by and through their attorney ~8 ~~ o ic Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm hereby ~-g l Ill
sect ~ submit this Brief in Support of Preliminary Objections to the Declaration of Taking The SQgt e ci o~ ~ (I) Preliminary Objections are sectpound 8o ~~ CSA sect 306 (I)
e8
W~ ~ _u l3
COUNTY PENNSYLVANIA
EMINENT DOMAIN - IN REM
middot NO 2018-29523 CIVIL
fi 1led pursuant to the Pennsylvania Eminent Domain Code 26 Pa
MATTER BEFORE THE COURT
~ - 1 Pleading Before the Court Condemnee s Preliminary Objections to Declaration of li ~~
8 0~
~ Taking ff ~o g E 2 Relief Requested ~Jg ClO Igt s ~~ 1 =It - Bl -a
~~
a Discovery and an evidentiary hearing
b Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
c The termination of condemnation
d Revesting of title in the name of John Bennett MD and Nance Di Rocco
e The reimbursement of costs and expenses to Condemnee by Condemnor including
reasonable appraisal attorney and engineering fees and other costs and expenses
actually incurred because of the condemnation proceedings 26 Pa CSA sect 306(g)
STATEMENT OF QUESTIONS INVOLVED
Question 1 Whether Lower Merion School District has the power and right to condemn
Condemnees property when the enabling Statute does not grant Condemnor the right to use
eminent domain and when the Condemnors decision to condemn was done in bad faith and was
arbitrary action equating an abuse of discretion
Suggested Answer No
FACTS
Condemnees own property commonly known as 1835 County Line Road Villanova Pa
19085 (tax parcel no 40-00-12868-00- 7) (the Property) The Property consists of approximately
106197 acres of land and contains two buildings The main building is an approximately 20000
sq ft mansion built in 1920 The second building is approximately 3000 sq ft and built in
approximately 2015 The land is situated next to Villanova University Condemnees purchased the
2
Property in 1997 and have resided there ever since Also currently residing at the property is the
Condemnees minor granddaughter MB
During this time Condemnees became close friends with Villanovas President Father
Peter Donahue Condemnees have hosted various University events at their home over the years
During this time Father Donahue conveyed the Universitys interest in purchasing the Property
Condemnees liked the idea of their property going to the University and always felt that someday
when they were ready to sell that they would sell it to the University Sometime around May of
2018 the Condemnees were contacted by real estate agent Stuart Dessner who relayed that the
Lower Merion School District (LMSD) might be interested in buying their property and their
neighbors property Preferring to sell to the University and knowing that Father Donahue always
wanted the University to have the Property Condemnees approached him and asked if the
University would be interested in buying the Property Father Donahue verbally offered $12
million dollars for the Property on behalf of the University and agreed to have the proper
paperwork drawn-up The University intended to maintain the historic buildings utilizing it in a
way that would not involve razing the property
LMSD learned that the University was interested in buying the Property for $12 million
dollars On or about June 27 2019 the Superintendent ofLMSD Rober L Copeland reached out
to Father Donahue and in an attempt to reduce the purchase price of the Property told Father
Donahue that $12 million dollars is too much for the Property Exhibit 1 Copeland told Father
Donahue that LMSD was interested in buying the Property from the Condemnees Id He wanted
to know how interested Villanova was in purchasing the property and how much Villanova would
be willing to pay Id Copeland then told Father Donahue that they valued the Property at $8 million
dollars Id Father Donahue then met with members of his cabinet and trustees who directed him
3
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
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~ sect (I)
6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
~~
acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
18 Ultimately if LMSD did not need Condemnees Property and the Spring Mill Road
property Dessner stated that LMSD could always sell it to Villanova University
19 Before ending the meeting Condemnee John Bennett gave Copeland and Dessner a
copy of his Purchase Agreement with Villanova University with the understanding that it would
remain confidential
20 Condemnee also informed Dessner and Copeland that the University would pull-
out of their Agreement of Sale if Condemnees were able to reach an agreement with LMSD
21 Unbeknownst to Condemnees on December 21 2018 (three days after Condemnee
John Bennett gave Dessner and Copeland confidential copies of the Universitys Agreement of
Sale) the School Board convened and passed a Resolution to condemn the Property
22 In a press released published that same day the School Board explained its illegal
intention as an attempt to thwart the purchase of the Property by Villanova University and to
maintain the tax base stating the condemnation will keep the property in use for the residents of
Lower Merion Township and Narbeth rather than enabling Villanova University to take the
property off the tax rolls for its private development use
23 LMSD explained further that although the sellers had indicated the District offers
were basically acceptable with minor revisions the agreements of sale were never returned to the
District
24 President of the Lower Merion Board of School Directors Dr Melissa Gilbert said
Im confident our residents would rather see the land being used by their neighbors than by
college students who dont live in Lower Merion or Narberth
25 The press release also stated that the Property would not actually be needed until
construction began in 2023
6
26 LMSD has no definite plans formulated as to the use to be made of the condemned
property No specifications as to the proposed building have yet been indicated Nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment or any other suitable investigation leading
to an intelligent informed judgment by the Condernnor
27 The Resolution authorized the payment of $9950000 and a lease permitting
Condemnees to reside on and occupy the Property until May 2023 (ie 7pprox 5 years)
28 On December 21 2018 Villanovas Counsel informed Condernnees that LMSD
passed the condemnation Resolution and suggested the agreement of sale be terminated or that
closing be pushed back to January 21 2019 to allow the school district more time to reach an
amicable agreement with Condemnees
29 On December 21 2018 LMSD formally took title to Condemnees Property by
filing a Declaration of Taking in the Montgomery County Court of Common Pleas
30 The Declaration of Taking stated vaguely that the Property was taken for school
district purposes as provide for by the resolution specifically for the purpose of utilizing said land
in conjunction with the construction of school buildings related facilities and necessary
improvements
31 Condernnees later learned the reason for Condernnors quick condemnation
Condemnees present counsel informed them that the Public School Code denies school districts
the right to take by condemnation land belonging to any incorporated institution of learning
such as Villanova University 24 PS sect 7-721 Therefore if Villanova University had closed on
7
the deal on January 4 2019 as planned LMSD would not have been able to condemn the Property
from Villanova University
32 Thus LMSD abused its eminent domain authority by taking advantage of
Condemnee John Bennetts confidential disclosure of his Purchase Agreement with Villanova that
he disclosed in good faith Condemnee John Bennett mistakenly believed LMSD was engaging in
good faith negotiations
33 On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD
attorney Daniel Mita to discuss the case
34 Attorney Mita emphasized to Cohen that if Condemnees did not agree to LMSDs
Purchase Agreement than Condemnees would be left without a lease which meant they would have
to quickly move
35 Attorney Mita emphasized that if the Condemnees did not agree the Condemnees
granddaughter MB who resides with them would not be able to attend LMSD
36 This highlights the hardship eminent domain places upon individuals and their
families and underscores why the abuse of such an awesome power should not be tolerated by this
Court
37 Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 property until May 2023
38 The 1800 West Montgomery Avenue property would provide easy access to the
Condemnees property
39 Also of note is that LMSD terminated the ill-informed Agreement of Sale for the
8
Spring Mill property on January 14 2019 further evidencing the lack of suitable investigation
leading to an intelligent informed judgment by the Condemnor
40 In accordance with Section 306 of the Pennsylvania Eminent Domain Code the
Condemnees file the following preliminary objections to the Condemnors Declaration of Taking
PRELIMINARY OBJECTIONS
THE POWER AND RIGHT TO CONDEMN
41 The Condemnees object to the power or right of LMSD to condemn
42 The power of eminent domain is the power to take property for a public use without
the consent of the owner of the property interest Eminent domain is not conferred by the
constitution It is a right inherent in the state as sovereign and is limited by the constitution In re
Condemnation of 110 Washington Street~ 767 A2d 1154 (Pa Commw Ct 2001) appeal denied
788 A2d 3 79 ( emphasis added) The Pennsylvania Constitution provides nor shall private
property be taken or applied to public use without authority of law and without just compensation
being first made or secured Pa Const art I sect 10 The United States Constitution provides
nor shall private property be taken for public use without just compensation US Const
Amendment V The Fifth Amendments prohibition against the taking of private property for
public use without just compensation applies against the States through the Fourteenth
Amendment Texaco Inc v Short 454 US 516523 n 11 (1982) Webbs Fabulous Pharmacies
_Inc v Beckwith 449 US 155 160 (1908)
43 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute and because the
9
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating an abuse of discretion
Eubling Statute
44 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose but instead was to thwart the sale of the Property to
Villanova from whom LMSD could not legally condemn
45 The legislature may delegate the right to exercise eminent domain power but the
body to which the power is entrusted has no authority beyond that which is legislatively granted
Marple Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Commw Ct 2004)
middotNegotiations
46 The Public School Code permits a school district to condemn property when it
cannot agree on the terms of its purchase with the owner or owners 24 PS sect 7-721
4 7 School directors cannot pass resolutions effecting condemnation until there has
been a failure to agree to terms of purchase with owner of realty selected for school purposes Jury
v Wiest 193 A 5 7 (Pa 1937)
48 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because Condemnor and Condemnee did not disagree on the terms of the
purchase and were still negotiating
10
Not for School Purposes
49 The Public School Code permits LMSD to condemn for school purposes 24 PS
sect 7-721
50 The legislature has provided school district boards of directors with power to
acquire by condemnation real estate it may deem necessary to furnish school buildings or other
suitable sites for proper school purposes 24 PS sect 7-703
51 Our State Supreme Court has directed that a taking may be examined for its true
purpose and not just the purpose as stated in the declaration of taking Middletown Tp V Lands
of Stone 939 A2d 331 (Pa 2007)
52 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because the condemnation was not for school purposes
Fraud Collusion Bad Faith or Arbitran Action Eguatin2 an Abuse of Discretion
53 A Condemnors decision to condemn may be overturned where the record shows
fraud collusion bad faith or arbitrary action equating an abuse of discretion Weber v City
of Philadelphia 262 A2d 297299 (1970)(emphasis added)
54 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Code because the Condemnor s decision to
condemn was the result of fraud collusion bad faith or arbitrary constituting an abuse of
discretion
Suitable Investi2ation Leading to an Intelligent lnfonned Jud2111ent
11
55 Unless the property is acquired after a suitable investigation leading to an
intelligent informed judgment by the condemnor the condemnation is invalid In re Scho Dist
Of Pittsburg 244 A2d 42 46 (Pa 1968) ( citing Winger v Aires 89 A2d 521 (Pa 1952)
56 The Condemnor failed to do a suitable investigation leading to an intelligent
informed judgment by the condemnor because LMSD has no definite plans formulated as to the
use to be made of the condemned property no specifications as to the proposed building have yet
been indicated nor has any definitive location of the tract been designated for the intended
structure no estimate of construction is yet available no wetlands study has been completed nor
a final development plan a final architectural plan a final engineering plan proper zoning
approval a thorough needs assessment nor any other due diligence measures
ExcessiveUnnecessary Taking
57 Condemnor may not appropriate a greater amount of property than is reasonably
required for contemplated purpose Aweal ofWaite 641 A2d 25 (Pa Commw Ct 1994)
58 A condemnation may be overturned if it is found to be excessive Estate of Rochez
by Goslin 558 A2d 605 (Pa Commw Ct 1989) amended on reconsideration 566 A2d 631 (Pa
Commw Ct 1989)
59 The taking is excessiveunnecessary because the Condemnor only asserted a need
for 56 acres for fields originally whereas the Condemnees property is 106 acres
Future Use Within a Reasonable Time
60 Land may be condemned for future expansion even if it cannot presently be used
for the purposes stated in the declaration of taking as long as the land will in good faith be necessary
12
for future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324
(Pa Commw Ct 1977)
61 Condemnees property is not needed for a future use within a reasonable time
because Condemnor is leasing the property back to Condemnee for 5 years and is based on
assumptions and possibilities that have not been proven by the evidence
RELIEF REQUESTED
62 Pursuant to the Pennsylvania Eminent Domain Code the court shall determine
promptly all preliminary objections and make preliminary and final orders and decrees as justice
shall require including the revesting of title 26 Pa CSA sect 306 (f)(l)
63 Moreover ifan issue of fact is raised the court shall take evidence by depositions
or otherwise 26 Pa CSA sect 306 (f)(2)
64 When preliminary objections raise an issue of fact the court must hold an
evidentiary hearing 26 Pa CSA sect 306(f)(2) Ameal ofMcKonly 618 A2d 1169 (Pa Commw
Ct 1992)
65 The Condemnees have raised issues of fact in these Preliminary Objections
66 Discovery and an evidentiary hearing are required
67 Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
68 The termination of condemnation
69 Revesting of title in the name of John Bennett MD and Nance Di Rocco
70 The reimbursement of costs and expenses to Condemnee by Condemnor including
13
reasonable appraisal attorney and engineering fees and other costs and expenses actually incurred
because of the condemnation proceedings 26 Pa CSA sect 306(g)
71 Condemnees file concurrently herewith a Brief in Support per local rule 1028( c)
and incorporate it herein by reference
WHEREFORE for the reasons stated above Condemnees respectfully submit these
preliminary objections and request that the Court grant the reliefrequested above
Respectfully submitted
FAHERTY LAW FIRM
Dated February 7 2019
Michael F Faherty Esquire Atty Id 55860 mfaherty(fahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000 Counsel for Condemnees
14
CERTIFICATE OF SERVICE
I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing
document filed on February _J_ 2019 was sent to the following individuals via first class mail
on February _7_ 2019
Drew K Kapur Esq ID No 35018 Duane Morris LLP 30 South 17th Street Philadelphia PA 19103-4196 dkkapurduanemorriscom 215-979-1000 Attorney for Condemnor
Michael F Faherty Esq Bar ID 55860 Anthony M Corby Esq Bar ID 316852 75 Cedar Ave Hershey PA 17033 717-256-3000 mfahertvfahertylawfinncom acorbyfabertylawfirmco Attorney for Condemnees
15
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6(1) o C g ~ CERTIFICATE OF COMPLIANCE 00 0 g il tJ I certify that this filing complies with the provisions of the Public Access Policy of the ~i 0 C
~g Un(fied Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that 111
-g E 0 e ~ require filing confidential information and documents differently than non-confidential
~ ~ middot12 g information and documents -~ sect s e 0
osect (I) C S C
sect~ s -~ t Respectfully submitted ci ejg
~~ FAHERTY LAW FIRM secti ~ liE
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i ~ Michael F Faherty Esquire ~ ~ Attorney Id 55860 ~ ~ 7 5 Cedar A venue ~ j Hershey Pennsylvania 17033
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osect ~ ~ IN THE COURT OF COMMON PLEAS OF MONTGOMERY sect ~ CIVIL DIVISION s II)
- ~ ci ~ i IN RE LOWER MERION SCHOOL sect~ DISTRICT CONDEMNATION OF LAND Ii E KNOWN TO BE THE PROPERTY OF JOHN -~
pound g A BENNETT MD AND NANCE DI j ~ ROCCO KNOWN AS A PORTION OF TAX i II) Ill
~ MAP PARCEL NO 40-00-12868-00-7 ~ ~ LOWER MERION TOWNSHIP ~ ~ MONTGOMERY COUNTY ~ j PENNSYLVANIA FOR SCHOOL o ~ PURPOSES ~g ~sect II 0
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~ middot CONDEMNEES BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS TO ~ ~ DECLARATION OF TAKING O)~ -0 II)
~ 5 Condemnees John Bennett MD and Nance Di Rocco by and through their attorney ~8 ~~ o ic Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm hereby ~-g l Ill
sect ~ submit this Brief in Support of Preliminary Objections to the Declaration of Taking The SQgt e ci o~ ~ (I) Preliminary Objections are sectpound 8o ~~ CSA sect 306 (I)
e8
W~ ~ _u l3
COUNTY PENNSYLVANIA
EMINENT DOMAIN - IN REM
middot NO 2018-29523 CIVIL
fi 1led pursuant to the Pennsylvania Eminent Domain Code 26 Pa
MATTER BEFORE THE COURT
~ - 1 Pleading Before the Court Condemnee s Preliminary Objections to Declaration of li ~~
8 0~
~ Taking ff ~o g E 2 Relief Requested ~Jg ClO Igt s ~~ 1 =It - Bl -a
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a Discovery and an evidentiary hearing
b Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
c The termination of condemnation
d Revesting of title in the name of John Bennett MD and Nance Di Rocco
e The reimbursement of costs and expenses to Condemnee by Condemnor including
reasonable appraisal attorney and engineering fees and other costs and expenses
actually incurred because of the condemnation proceedings 26 Pa CSA sect 306(g)
STATEMENT OF QUESTIONS INVOLVED
Question 1 Whether Lower Merion School District has the power and right to condemn
Condemnees property when the enabling Statute does not grant Condemnor the right to use
eminent domain and when the Condemnors decision to condemn was done in bad faith and was
arbitrary action equating an abuse of discretion
Suggested Answer No
FACTS
Condemnees own property commonly known as 1835 County Line Road Villanova Pa
19085 (tax parcel no 40-00-12868-00- 7) (the Property) The Property consists of approximately
106197 acres of land and contains two buildings The main building is an approximately 20000
sq ft mansion built in 1920 The second building is approximately 3000 sq ft and built in
approximately 2015 The land is situated next to Villanova University Condemnees purchased the
2
Property in 1997 and have resided there ever since Also currently residing at the property is the
Condemnees minor granddaughter MB
During this time Condemnees became close friends with Villanovas President Father
Peter Donahue Condemnees have hosted various University events at their home over the years
During this time Father Donahue conveyed the Universitys interest in purchasing the Property
Condemnees liked the idea of their property going to the University and always felt that someday
when they were ready to sell that they would sell it to the University Sometime around May of
2018 the Condemnees were contacted by real estate agent Stuart Dessner who relayed that the
Lower Merion School District (LMSD) might be interested in buying their property and their
neighbors property Preferring to sell to the University and knowing that Father Donahue always
wanted the University to have the Property Condemnees approached him and asked if the
University would be interested in buying the Property Father Donahue verbally offered $12
million dollars for the Property on behalf of the University and agreed to have the proper
paperwork drawn-up The University intended to maintain the historic buildings utilizing it in a
way that would not involve razing the property
LMSD learned that the University was interested in buying the Property for $12 million
dollars On or about June 27 2019 the Superintendent ofLMSD Rober L Copeland reached out
to Father Donahue and in an attempt to reduce the purchase price of the Property told Father
Donahue that $12 million dollars is too much for the Property Exhibit 1 Copeland told Father
Donahue that LMSD was interested in buying the Property from the Condemnees Id He wanted
to know how interested Villanova was in purchasing the property and how much Villanova would
be willing to pay Id Copeland then told Father Donahue that they valued the Property at $8 million
dollars Id Father Donahue then met with members of his cabinet and trustees who directed him
3
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
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~ sect (I)
6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
~~
acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
26 LMSD has no definite plans formulated as to the use to be made of the condemned
property No specifications as to the proposed building have yet been indicated Nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment or any other suitable investigation leading
to an intelligent informed judgment by the Condernnor
27 The Resolution authorized the payment of $9950000 and a lease permitting
Condemnees to reside on and occupy the Property until May 2023 (ie 7pprox 5 years)
28 On December 21 2018 Villanovas Counsel informed Condernnees that LMSD
passed the condemnation Resolution and suggested the agreement of sale be terminated or that
closing be pushed back to January 21 2019 to allow the school district more time to reach an
amicable agreement with Condemnees
29 On December 21 2018 LMSD formally took title to Condemnees Property by
filing a Declaration of Taking in the Montgomery County Court of Common Pleas
30 The Declaration of Taking stated vaguely that the Property was taken for school
district purposes as provide for by the resolution specifically for the purpose of utilizing said land
in conjunction with the construction of school buildings related facilities and necessary
improvements
31 Condernnees later learned the reason for Condernnors quick condemnation
Condemnees present counsel informed them that the Public School Code denies school districts
the right to take by condemnation land belonging to any incorporated institution of learning
such as Villanova University 24 PS sect 7-721 Therefore if Villanova University had closed on
7
the deal on January 4 2019 as planned LMSD would not have been able to condemn the Property
from Villanova University
32 Thus LMSD abused its eminent domain authority by taking advantage of
Condemnee John Bennetts confidential disclosure of his Purchase Agreement with Villanova that
he disclosed in good faith Condemnee John Bennett mistakenly believed LMSD was engaging in
good faith negotiations
33 On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD
attorney Daniel Mita to discuss the case
34 Attorney Mita emphasized to Cohen that if Condemnees did not agree to LMSDs
Purchase Agreement than Condemnees would be left without a lease which meant they would have
to quickly move
35 Attorney Mita emphasized that if the Condemnees did not agree the Condemnees
granddaughter MB who resides with them would not be able to attend LMSD
36 This highlights the hardship eminent domain places upon individuals and their
families and underscores why the abuse of such an awesome power should not be tolerated by this
Court
37 Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 property until May 2023
38 The 1800 West Montgomery Avenue property would provide easy access to the
Condemnees property
39 Also of note is that LMSD terminated the ill-informed Agreement of Sale for the
8
Spring Mill property on January 14 2019 further evidencing the lack of suitable investigation
leading to an intelligent informed judgment by the Condemnor
40 In accordance with Section 306 of the Pennsylvania Eminent Domain Code the
Condemnees file the following preliminary objections to the Condemnors Declaration of Taking
PRELIMINARY OBJECTIONS
THE POWER AND RIGHT TO CONDEMN
41 The Condemnees object to the power or right of LMSD to condemn
42 The power of eminent domain is the power to take property for a public use without
the consent of the owner of the property interest Eminent domain is not conferred by the
constitution It is a right inherent in the state as sovereign and is limited by the constitution In re
Condemnation of 110 Washington Street~ 767 A2d 1154 (Pa Commw Ct 2001) appeal denied
788 A2d 3 79 ( emphasis added) The Pennsylvania Constitution provides nor shall private
property be taken or applied to public use without authority of law and without just compensation
being first made or secured Pa Const art I sect 10 The United States Constitution provides
nor shall private property be taken for public use without just compensation US Const
Amendment V The Fifth Amendments prohibition against the taking of private property for
public use without just compensation applies against the States through the Fourteenth
Amendment Texaco Inc v Short 454 US 516523 n 11 (1982) Webbs Fabulous Pharmacies
_Inc v Beckwith 449 US 155 160 (1908)
43 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute and because the
9
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating an abuse of discretion
Eubling Statute
44 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose but instead was to thwart the sale of the Property to
Villanova from whom LMSD could not legally condemn
45 The legislature may delegate the right to exercise eminent domain power but the
body to which the power is entrusted has no authority beyond that which is legislatively granted
Marple Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Commw Ct 2004)
middotNegotiations
46 The Public School Code permits a school district to condemn property when it
cannot agree on the terms of its purchase with the owner or owners 24 PS sect 7-721
4 7 School directors cannot pass resolutions effecting condemnation until there has
been a failure to agree to terms of purchase with owner of realty selected for school purposes Jury
v Wiest 193 A 5 7 (Pa 1937)
48 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because Condemnor and Condemnee did not disagree on the terms of the
purchase and were still negotiating
10
Not for School Purposes
49 The Public School Code permits LMSD to condemn for school purposes 24 PS
sect 7-721
50 The legislature has provided school district boards of directors with power to
acquire by condemnation real estate it may deem necessary to furnish school buildings or other
suitable sites for proper school purposes 24 PS sect 7-703
51 Our State Supreme Court has directed that a taking may be examined for its true
purpose and not just the purpose as stated in the declaration of taking Middletown Tp V Lands
of Stone 939 A2d 331 (Pa 2007)
52 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because the condemnation was not for school purposes
Fraud Collusion Bad Faith or Arbitran Action Eguatin2 an Abuse of Discretion
53 A Condemnors decision to condemn may be overturned where the record shows
fraud collusion bad faith or arbitrary action equating an abuse of discretion Weber v City
of Philadelphia 262 A2d 297299 (1970)(emphasis added)
54 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Code because the Condemnor s decision to
condemn was the result of fraud collusion bad faith or arbitrary constituting an abuse of
discretion
Suitable Investi2ation Leading to an Intelligent lnfonned Jud2111ent
11
55 Unless the property is acquired after a suitable investigation leading to an
intelligent informed judgment by the condemnor the condemnation is invalid In re Scho Dist
Of Pittsburg 244 A2d 42 46 (Pa 1968) ( citing Winger v Aires 89 A2d 521 (Pa 1952)
56 The Condemnor failed to do a suitable investigation leading to an intelligent
informed judgment by the condemnor because LMSD has no definite plans formulated as to the
use to be made of the condemned property no specifications as to the proposed building have yet
been indicated nor has any definitive location of the tract been designated for the intended
structure no estimate of construction is yet available no wetlands study has been completed nor
a final development plan a final architectural plan a final engineering plan proper zoning
approval a thorough needs assessment nor any other due diligence measures
ExcessiveUnnecessary Taking
57 Condemnor may not appropriate a greater amount of property than is reasonably
required for contemplated purpose Aweal ofWaite 641 A2d 25 (Pa Commw Ct 1994)
58 A condemnation may be overturned if it is found to be excessive Estate of Rochez
by Goslin 558 A2d 605 (Pa Commw Ct 1989) amended on reconsideration 566 A2d 631 (Pa
Commw Ct 1989)
59 The taking is excessiveunnecessary because the Condemnor only asserted a need
for 56 acres for fields originally whereas the Condemnees property is 106 acres
Future Use Within a Reasonable Time
60 Land may be condemned for future expansion even if it cannot presently be used
for the purposes stated in the declaration of taking as long as the land will in good faith be necessary
12
for future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324
(Pa Commw Ct 1977)
61 Condemnees property is not needed for a future use within a reasonable time
because Condemnor is leasing the property back to Condemnee for 5 years and is based on
assumptions and possibilities that have not been proven by the evidence
RELIEF REQUESTED
62 Pursuant to the Pennsylvania Eminent Domain Code the court shall determine
promptly all preliminary objections and make preliminary and final orders and decrees as justice
shall require including the revesting of title 26 Pa CSA sect 306 (f)(l)
63 Moreover ifan issue of fact is raised the court shall take evidence by depositions
or otherwise 26 Pa CSA sect 306 (f)(2)
64 When preliminary objections raise an issue of fact the court must hold an
evidentiary hearing 26 Pa CSA sect 306(f)(2) Ameal ofMcKonly 618 A2d 1169 (Pa Commw
Ct 1992)
65 The Condemnees have raised issues of fact in these Preliminary Objections
66 Discovery and an evidentiary hearing are required
67 Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
68 The termination of condemnation
69 Revesting of title in the name of John Bennett MD and Nance Di Rocco
70 The reimbursement of costs and expenses to Condemnee by Condemnor including
13
reasonable appraisal attorney and engineering fees and other costs and expenses actually incurred
because of the condemnation proceedings 26 Pa CSA sect 306(g)
71 Condemnees file concurrently herewith a Brief in Support per local rule 1028( c)
and incorporate it herein by reference
WHEREFORE for the reasons stated above Condemnees respectfully submit these
preliminary objections and request that the Court grant the reliefrequested above
Respectfully submitted
FAHERTY LAW FIRM
Dated February 7 2019
Michael F Faherty Esquire Atty Id 55860 mfaherty(fahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000 Counsel for Condemnees
14
CERTIFICATE OF SERVICE
I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing
document filed on February _J_ 2019 was sent to the following individuals via first class mail
on February _7_ 2019
Drew K Kapur Esq ID No 35018 Duane Morris LLP 30 South 17th Street Philadelphia PA 19103-4196 dkkapurduanemorriscom 215-979-1000 Attorney for Condemnor
Michael F Faherty Esq Bar ID 55860 Anthony M Corby Esq Bar ID 316852 75 Cedar Ave Hershey PA 17033 717-256-3000 mfahertvfahertylawfinncom acorbyfabertylawfirmco Attorney for Condemnees
15
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~g Un(fied Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that 111
-g E 0 e ~ require filing confidential information and documents differently than non-confidential
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sect~ s -~ t Respectfully submitted ci ejg
~~ FAHERTY LAW FIRM secti ~ liE
ig ~~ -r-_ _ ltii~ ~~ S C II) Ill
i ~ Michael F Faherty Esquire ~ ~ Attorney Id 55860 ~ ~ 7 5 Cedar A venue ~ j Hershey Pennsylvania 17033
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~ g Tel (717)256-3000 ~ 8 mfahertyfahertylawfirmcom ~ f Attorney for Plaintiffs
bull I)
5middot5 CI o- Dated February 7 2019 0~ lto-0)~ -0 II)
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osect ~ ~ IN THE COURT OF COMMON PLEAS OF MONTGOMERY sect ~ CIVIL DIVISION s II)
- ~ ci ~ i IN RE LOWER MERION SCHOOL sect~ DISTRICT CONDEMNATION OF LAND Ii E KNOWN TO BE THE PROPERTY OF JOHN -~
pound g A BENNETT MD AND NANCE DI j ~ ROCCO KNOWN AS A PORTION OF TAX i II) Ill
~ MAP PARCEL NO 40-00-12868-00-7 ~ ~ LOWER MERION TOWNSHIP ~ ~ MONTGOMERY COUNTY ~ j PENNSYLVANIA FOR SCHOOL o ~ PURPOSES ~g ~sect II 0
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~ middot CONDEMNEES BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS TO ~ ~ DECLARATION OF TAKING O)~ -0 II)
~ 5 Condemnees John Bennett MD and Nance Di Rocco by and through their attorney ~8 ~~ o ic Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm hereby ~-g l Ill
sect ~ submit this Brief in Support of Preliminary Objections to the Declaration of Taking The SQgt e ci o~ ~ (I) Preliminary Objections are sectpound 8o ~~ CSA sect 306 (I)
e8
W~ ~ _u l3
COUNTY PENNSYLVANIA
EMINENT DOMAIN - IN REM
middot NO 2018-29523 CIVIL
fi 1led pursuant to the Pennsylvania Eminent Domain Code 26 Pa
MATTER BEFORE THE COURT
~ - 1 Pleading Before the Court Condemnee s Preliminary Objections to Declaration of li ~~
8 0~
~ Taking ff ~o g E 2 Relief Requested ~Jg ClO Igt s ~~ 1 =It - Bl -a
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a Discovery and an evidentiary hearing
b Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
c The termination of condemnation
d Revesting of title in the name of John Bennett MD and Nance Di Rocco
e The reimbursement of costs and expenses to Condemnee by Condemnor including
reasonable appraisal attorney and engineering fees and other costs and expenses
actually incurred because of the condemnation proceedings 26 Pa CSA sect 306(g)
STATEMENT OF QUESTIONS INVOLVED
Question 1 Whether Lower Merion School District has the power and right to condemn
Condemnees property when the enabling Statute does not grant Condemnor the right to use
eminent domain and when the Condemnors decision to condemn was done in bad faith and was
arbitrary action equating an abuse of discretion
Suggested Answer No
FACTS
Condemnees own property commonly known as 1835 County Line Road Villanova Pa
19085 (tax parcel no 40-00-12868-00- 7) (the Property) The Property consists of approximately
106197 acres of land and contains two buildings The main building is an approximately 20000
sq ft mansion built in 1920 The second building is approximately 3000 sq ft and built in
approximately 2015 The land is situated next to Villanova University Condemnees purchased the
2
Property in 1997 and have resided there ever since Also currently residing at the property is the
Condemnees minor granddaughter MB
During this time Condemnees became close friends with Villanovas President Father
Peter Donahue Condemnees have hosted various University events at their home over the years
During this time Father Donahue conveyed the Universitys interest in purchasing the Property
Condemnees liked the idea of their property going to the University and always felt that someday
when they were ready to sell that they would sell it to the University Sometime around May of
2018 the Condemnees were contacted by real estate agent Stuart Dessner who relayed that the
Lower Merion School District (LMSD) might be interested in buying their property and their
neighbors property Preferring to sell to the University and knowing that Father Donahue always
wanted the University to have the Property Condemnees approached him and asked if the
University would be interested in buying the Property Father Donahue verbally offered $12
million dollars for the Property on behalf of the University and agreed to have the proper
paperwork drawn-up The University intended to maintain the historic buildings utilizing it in a
way that would not involve razing the property
LMSD learned that the University was interested in buying the Property for $12 million
dollars On or about June 27 2019 the Superintendent ofLMSD Rober L Copeland reached out
to Father Donahue and in an attempt to reduce the purchase price of the Property told Father
Donahue that $12 million dollars is too much for the Property Exhibit 1 Copeland told Father
Donahue that LMSD was interested in buying the Property from the Condemnees Id He wanted
to know how interested Villanova was in purchasing the property and how much Villanova would
be willing to pay Id Copeland then told Father Donahue that they valued the Property at $8 million
dollars Id Father Donahue then met with members of his cabinet and trustees who directed him
3
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
tJ
~ sect (I)
6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
~~
acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System 1of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum~nts -- -
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
the deal on January 4 2019 as planned LMSD would not have been able to condemn the Property
from Villanova University
32 Thus LMSD abused its eminent domain authority by taking advantage of
Condemnee John Bennetts confidential disclosure of his Purchase Agreement with Villanova that
he disclosed in good faith Condemnee John Bennett mistakenly believed LMSD was engaging in
good faith negotiations
33 On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD
attorney Daniel Mita to discuss the case
34 Attorney Mita emphasized to Cohen that if Condemnees did not agree to LMSDs
Purchase Agreement than Condemnees would be left without a lease which meant they would have
to quickly move
35 Attorney Mita emphasized that if the Condemnees did not agree the Condemnees
granddaughter MB who resides with them would not be able to attend LMSD
36 This highlights the hardship eminent domain places upon individuals and their
families and underscores why the abuse of such an awesome power should not be tolerated by this
Court
37 Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 property until May 2023
38 The 1800 West Montgomery Avenue property would provide easy access to the
Condemnees property
39 Also of note is that LMSD terminated the ill-informed Agreement of Sale for the
8
Spring Mill property on January 14 2019 further evidencing the lack of suitable investigation
leading to an intelligent informed judgment by the Condemnor
40 In accordance with Section 306 of the Pennsylvania Eminent Domain Code the
Condemnees file the following preliminary objections to the Condemnors Declaration of Taking
PRELIMINARY OBJECTIONS
THE POWER AND RIGHT TO CONDEMN
41 The Condemnees object to the power or right of LMSD to condemn
42 The power of eminent domain is the power to take property for a public use without
the consent of the owner of the property interest Eminent domain is not conferred by the
constitution It is a right inherent in the state as sovereign and is limited by the constitution In re
Condemnation of 110 Washington Street~ 767 A2d 1154 (Pa Commw Ct 2001) appeal denied
788 A2d 3 79 ( emphasis added) The Pennsylvania Constitution provides nor shall private
property be taken or applied to public use without authority of law and without just compensation
being first made or secured Pa Const art I sect 10 The United States Constitution provides
nor shall private property be taken for public use without just compensation US Const
Amendment V The Fifth Amendments prohibition against the taking of private property for
public use without just compensation applies against the States through the Fourteenth
Amendment Texaco Inc v Short 454 US 516523 n 11 (1982) Webbs Fabulous Pharmacies
_Inc v Beckwith 449 US 155 160 (1908)
43 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute and because the
9
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating an abuse of discretion
Eubling Statute
44 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose but instead was to thwart the sale of the Property to
Villanova from whom LMSD could not legally condemn
45 The legislature may delegate the right to exercise eminent domain power but the
body to which the power is entrusted has no authority beyond that which is legislatively granted
Marple Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Commw Ct 2004)
middotNegotiations
46 The Public School Code permits a school district to condemn property when it
cannot agree on the terms of its purchase with the owner or owners 24 PS sect 7-721
4 7 School directors cannot pass resolutions effecting condemnation until there has
been a failure to agree to terms of purchase with owner of realty selected for school purposes Jury
v Wiest 193 A 5 7 (Pa 1937)
48 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because Condemnor and Condemnee did not disagree on the terms of the
purchase and were still negotiating
10
Not for School Purposes
49 The Public School Code permits LMSD to condemn for school purposes 24 PS
sect 7-721
50 The legislature has provided school district boards of directors with power to
acquire by condemnation real estate it may deem necessary to furnish school buildings or other
suitable sites for proper school purposes 24 PS sect 7-703
51 Our State Supreme Court has directed that a taking may be examined for its true
purpose and not just the purpose as stated in the declaration of taking Middletown Tp V Lands
of Stone 939 A2d 331 (Pa 2007)
52 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because the condemnation was not for school purposes
Fraud Collusion Bad Faith or Arbitran Action Eguatin2 an Abuse of Discretion
53 A Condemnors decision to condemn may be overturned where the record shows
fraud collusion bad faith or arbitrary action equating an abuse of discretion Weber v City
of Philadelphia 262 A2d 297299 (1970)(emphasis added)
54 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Code because the Condemnor s decision to
condemn was the result of fraud collusion bad faith or arbitrary constituting an abuse of
discretion
Suitable Investi2ation Leading to an Intelligent lnfonned Jud2111ent
11
55 Unless the property is acquired after a suitable investigation leading to an
intelligent informed judgment by the condemnor the condemnation is invalid In re Scho Dist
Of Pittsburg 244 A2d 42 46 (Pa 1968) ( citing Winger v Aires 89 A2d 521 (Pa 1952)
56 The Condemnor failed to do a suitable investigation leading to an intelligent
informed judgment by the condemnor because LMSD has no definite plans formulated as to the
use to be made of the condemned property no specifications as to the proposed building have yet
been indicated nor has any definitive location of the tract been designated for the intended
structure no estimate of construction is yet available no wetlands study has been completed nor
a final development plan a final architectural plan a final engineering plan proper zoning
approval a thorough needs assessment nor any other due diligence measures
ExcessiveUnnecessary Taking
57 Condemnor may not appropriate a greater amount of property than is reasonably
required for contemplated purpose Aweal ofWaite 641 A2d 25 (Pa Commw Ct 1994)
58 A condemnation may be overturned if it is found to be excessive Estate of Rochez
by Goslin 558 A2d 605 (Pa Commw Ct 1989) amended on reconsideration 566 A2d 631 (Pa
Commw Ct 1989)
59 The taking is excessiveunnecessary because the Condemnor only asserted a need
for 56 acres for fields originally whereas the Condemnees property is 106 acres
Future Use Within a Reasonable Time
60 Land may be condemned for future expansion even if it cannot presently be used
for the purposes stated in the declaration of taking as long as the land will in good faith be necessary
12
for future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324
(Pa Commw Ct 1977)
61 Condemnees property is not needed for a future use within a reasonable time
because Condemnor is leasing the property back to Condemnee for 5 years and is based on
assumptions and possibilities that have not been proven by the evidence
RELIEF REQUESTED
62 Pursuant to the Pennsylvania Eminent Domain Code the court shall determine
promptly all preliminary objections and make preliminary and final orders and decrees as justice
shall require including the revesting of title 26 Pa CSA sect 306 (f)(l)
63 Moreover ifan issue of fact is raised the court shall take evidence by depositions
or otherwise 26 Pa CSA sect 306 (f)(2)
64 When preliminary objections raise an issue of fact the court must hold an
evidentiary hearing 26 Pa CSA sect 306(f)(2) Ameal ofMcKonly 618 A2d 1169 (Pa Commw
Ct 1992)
65 The Condemnees have raised issues of fact in these Preliminary Objections
66 Discovery and an evidentiary hearing are required
67 Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
68 The termination of condemnation
69 Revesting of title in the name of John Bennett MD and Nance Di Rocco
70 The reimbursement of costs and expenses to Condemnee by Condemnor including
13
reasonable appraisal attorney and engineering fees and other costs and expenses actually incurred
because of the condemnation proceedings 26 Pa CSA sect 306(g)
71 Condemnees file concurrently herewith a Brief in Support per local rule 1028( c)
and incorporate it herein by reference
WHEREFORE for the reasons stated above Condemnees respectfully submit these
preliminary objections and request that the Court grant the reliefrequested above
Respectfully submitted
FAHERTY LAW FIRM
Dated February 7 2019
Michael F Faherty Esquire Atty Id 55860 mfaherty(fahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000 Counsel for Condemnees
14
CERTIFICATE OF SERVICE
I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing
document filed on February _J_ 2019 was sent to the following individuals via first class mail
on February _7_ 2019
Drew K Kapur Esq ID No 35018 Duane Morris LLP 30 South 17th Street Philadelphia PA 19103-4196 dkkapurduanemorriscom 215-979-1000 Attorney for Condemnor
Michael F Faherty Esq Bar ID 55860 Anthony M Corby Esq Bar ID 316852 75 Cedar Ave Hershey PA 17033 717-256-3000 mfahertvfahertylawfinncom acorbyfabertylawfirmco Attorney for Condemnees
15
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6(1) o C g ~ CERTIFICATE OF COMPLIANCE 00 0 g il tJ I certify that this filing complies with the provisions of the Public Access Policy of the ~i 0 C
~g Un(fied Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that 111
-g E 0 e ~ require filing confidential information and documents differently than non-confidential
~ ~ middot12 g information and documents -~ sect s e 0
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sect~ s -~ t Respectfully submitted ci ejg
~~ FAHERTY LAW FIRM secti ~ liE
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i ~ Michael F Faherty Esquire ~ ~ Attorney Id 55860 ~ ~ 7 5 Cedar A venue ~ j Hershey Pennsylvania 17033
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- ~ ci ~ i IN RE LOWER MERION SCHOOL sect~ DISTRICT CONDEMNATION OF LAND Ii E KNOWN TO BE THE PROPERTY OF JOHN -~
pound g A BENNETT MD AND NANCE DI j ~ ROCCO KNOWN AS A PORTION OF TAX i II) Ill
~ MAP PARCEL NO 40-00-12868-00-7 ~ ~ LOWER MERION TOWNSHIP ~ ~ MONTGOMERY COUNTY ~ j PENNSYLVANIA FOR SCHOOL o ~ PURPOSES ~g ~sect II 0
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~ middot CONDEMNEES BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS TO ~ ~ DECLARATION OF TAKING O)~ -0 II)
~ 5 Condemnees John Bennett MD and Nance Di Rocco by and through their attorney ~8 ~~ o ic Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm hereby ~-g l Ill
sect ~ submit this Brief in Support of Preliminary Objections to the Declaration of Taking The SQgt e ci o~ ~ (I) Preliminary Objections are sectpound 8o ~~ CSA sect 306 (I)
e8
W~ ~ _u l3
COUNTY PENNSYLVANIA
EMINENT DOMAIN - IN REM
middot NO 2018-29523 CIVIL
fi 1led pursuant to the Pennsylvania Eminent Domain Code 26 Pa
MATTER BEFORE THE COURT
~ - 1 Pleading Before the Court Condemnee s Preliminary Objections to Declaration of li ~~
8 0~
~ Taking ff ~o g E 2 Relief Requested ~Jg ClO Igt s ~~ 1 =It - Bl -a
~~
a Discovery and an evidentiary hearing
b Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
c The termination of condemnation
d Revesting of title in the name of John Bennett MD and Nance Di Rocco
e The reimbursement of costs and expenses to Condemnee by Condemnor including
reasonable appraisal attorney and engineering fees and other costs and expenses
actually incurred because of the condemnation proceedings 26 Pa CSA sect 306(g)
STATEMENT OF QUESTIONS INVOLVED
Question 1 Whether Lower Merion School District has the power and right to condemn
Condemnees property when the enabling Statute does not grant Condemnor the right to use
eminent domain and when the Condemnors decision to condemn was done in bad faith and was
arbitrary action equating an abuse of discretion
Suggested Answer No
FACTS
Condemnees own property commonly known as 1835 County Line Road Villanova Pa
19085 (tax parcel no 40-00-12868-00- 7) (the Property) The Property consists of approximately
106197 acres of land and contains two buildings The main building is an approximately 20000
sq ft mansion built in 1920 The second building is approximately 3000 sq ft and built in
approximately 2015 The land is situated next to Villanova University Condemnees purchased the
2
Property in 1997 and have resided there ever since Also currently residing at the property is the
Condemnees minor granddaughter MB
During this time Condemnees became close friends with Villanovas President Father
Peter Donahue Condemnees have hosted various University events at their home over the years
During this time Father Donahue conveyed the Universitys interest in purchasing the Property
Condemnees liked the idea of their property going to the University and always felt that someday
when they were ready to sell that they would sell it to the University Sometime around May of
2018 the Condemnees were contacted by real estate agent Stuart Dessner who relayed that the
Lower Merion School District (LMSD) might be interested in buying their property and their
neighbors property Preferring to sell to the University and knowing that Father Donahue always
wanted the University to have the Property Condemnees approached him and asked if the
University would be interested in buying the Property Father Donahue verbally offered $12
million dollars for the Property on behalf of the University and agreed to have the proper
paperwork drawn-up The University intended to maintain the historic buildings utilizing it in a
way that would not involve razing the property
LMSD learned that the University was interested in buying the Property for $12 million
dollars On or about June 27 2019 the Superintendent ofLMSD Rober L Copeland reached out
to Father Donahue and in an attempt to reduce the purchase price of the Property told Father
Donahue that $12 million dollars is too much for the Property Exhibit 1 Copeland told Father
Donahue that LMSD was interested in buying the Property from the Condemnees Id He wanted
to know how interested Villanova was in purchasing the property and how much Villanova would
be willing to pay Id Copeland then told Father Donahue that they valued the Property at $8 million
dollars Id Father Donahue then met with members of his cabinet and trustees who directed him
3
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
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~ sect (I)
6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
~~
acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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Case 2018-29j~~34 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $qoo The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing corl~fial information and documents differently than non-confidential information and doc~nts
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
Spring Mill property on January 14 2019 further evidencing the lack of suitable investigation
leading to an intelligent informed judgment by the Condemnor
40 In accordance with Section 306 of the Pennsylvania Eminent Domain Code the
Condemnees file the following preliminary objections to the Condemnors Declaration of Taking
PRELIMINARY OBJECTIONS
THE POWER AND RIGHT TO CONDEMN
41 The Condemnees object to the power or right of LMSD to condemn
42 The power of eminent domain is the power to take property for a public use without
the consent of the owner of the property interest Eminent domain is not conferred by the
constitution It is a right inherent in the state as sovereign and is limited by the constitution In re
Condemnation of 110 Washington Street~ 767 A2d 1154 (Pa Commw Ct 2001) appeal denied
788 A2d 3 79 ( emphasis added) The Pennsylvania Constitution provides nor shall private
property be taken or applied to public use without authority of law and without just compensation
being first made or secured Pa Const art I sect 10 The United States Constitution provides
nor shall private property be taken for public use without just compensation US Const
Amendment V The Fifth Amendments prohibition against the taking of private property for
public use without just compensation applies against the States through the Fourteenth
Amendment Texaco Inc v Short 454 US 516523 n 11 (1982) Webbs Fabulous Pharmacies
_Inc v Beckwith 449 US 155 160 (1908)
43 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute and because the
9
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating an abuse of discretion
Eubling Statute
44 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose but instead was to thwart the sale of the Property to
Villanova from whom LMSD could not legally condemn
45 The legislature may delegate the right to exercise eminent domain power but the
body to which the power is entrusted has no authority beyond that which is legislatively granted
Marple Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Commw Ct 2004)
middotNegotiations
46 The Public School Code permits a school district to condemn property when it
cannot agree on the terms of its purchase with the owner or owners 24 PS sect 7-721
4 7 School directors cannot pass resolutions effecting condemnation until there has
been a failure to agree to terms of purchase with owner of realty selected for school purposes Jury
v Wiest 193 A 5 7 (Pa 1937)
48 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because Condemnor and Condemnee did not disagree on the terms of the
purchase and were still negotiating
10
Not for School Purposes
49 The Public School Code permits LMSD to condemn for school purposes 24 PS
sect 7-721
50 The legislature has provided school district boards of directors with power to
acquire by condemnation real estate it may deem necessary to furnish school buildings or other
suitable sites for proper school purposes 24 PS sect 7-703
51 Our State Supreme Court has directed that a taking may be examined for its true
purpose and not just the purpose as stated in the declaration of taking Middletown Tp V Lands
of Stone 939 A2d 331 (Pa 2007)
52 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because the condemnation was not for school purposes
Fraud Collusion Bad Faith or Arbitran Action Eguatin2 an Abuse of Discretion
53 A Condemnors decision to condemn may be overturned where the record shows
fraud collusion bad faith or arbitrary action equating an abuse of discretion Weber v City
of Philadelphia 262 A2d 297299 (1970)(emphasis added)
54 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Code because the Condemnor s decision to
condemn was the result of fraud collusion bad faith or arbitrary constituting an abuse of
discretion
Suitable Investi2ation Leading to an Intelligent lnfonned Jud2111ent
11
55 Unless the property is acquired after a suitable investigation leading to an
intelligent informed judgment by the condemnor the condemnation is invalid In re Scho Dist
Of Pittsburg 244 A2d 42 46 (Pa 1968) ( citing Winger v Aires 89 A2d 521 (Pa 1952)
56 The Condemnor failed to do a suitable investigation leading to an intelligent
informed judgment by the condemnor because LMSD has no definite plans formulated as to the
use to be made of the condemned property no specifications as to the proposed building have yet
been indicated nor has any definitive location of the tract been designated for the intended
structure no estimate of construction is yet available no wetlands study has been completed nor
a final development plan a final architectural plan a final engineering plan proper zoning
approval a thorough needs assessment nor any other due diligence measures
ExcessiveUnnecessary Taking
57 Condemnor may not appropriate a greater amount of property than is reasonably
required for contemplated purpose Aweal ofWaite 641 A2d 25 (Pa Commw Ct 1994)
58 A condemnation may be overturned if it is found to be excessive Estate of Rochez
by Goslin 558 A2d 605 (Pa Commw Ct 1989) amended on reconsideration 566 A2d 631 (Pa
Commw Ct 1989)
59 The taking is excessiveunnecessary because the Condemnor only asserted a need
for 56 acres for fields originally whereas the Condemnees property is 106 acres
Future Use Within a Reasonable Time
60 Land may be condemned for future expansion even if it cannot presently be used
for the purposes stated in the declaration of taking as long as the land will in good faith be necessary
12
for future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324
(Pa Commw Ct 1977)
61 Condemnees property is not needed for a future use within a reasonable time
because Condemnor is leasing the property back to Condemnee for 5 years and is based on
assumptions and possibilities that have not been proven by the evidence
RELIEF REQUESTED
62 Pursuant to the Pennsylvania Eminent Domain Code the court shall determine
promptly all preliminary objections and make preliminary and final orders and decrees as justice
shall require including the revesting of title 26 Pa CSA sect 306 (f)(l)
63 Moreover ifan issue of fact is raised the court shall take evidence by depositions
or otherwise 26 Pa CSA sect 306 (f)(2)
64 When preliminary objections raise an issue of fact the court must hold an
evidentiary hearing 26 Pa CSA sect 306(f)(2) Ameal ofMcKonly 618 A2d 1169 (Pa Commw
Ct 1992)
65 The Condemnees have raised issues of fact in these Preliminary Objections
66 Discovery and an evidentiary hearing are required
67 Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
68 The termination of condemnation
69 Revesting of title in the name of John Bennett MD and Nance Di Rocco
70 The reimbursement of costs and expenses to Condemnee by Condemnor including
13
reasonable appraisal attorney and engineering fees and other costs and expenses actually incurred
because of the condemnation proceedings 26 Pa CSA sect 306(g)
71 Condemnees file concurrently herewith a Brief in Support per local rule 1028( c)
and incorporate it herein by reference
WHEREFORE for the reasons stated above Condemnees respectfully submit these
preliminary objections and request that the Court grant the reliefrequested above
Respectfully submitted
FAHERTY LAW FIRM
Dated February 7 2019
Michael F Faherty Esquire Atty Id 55860 mfaherty(fahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000 Counsel for Condemnees
14
CERTIFICATE OF SERVICE
I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing
document filed on February _J_ 2019 was sent to the following individuals via first class mail
on February _7_ 2019
Drew K Kapur Esq ID No 35018 Duane Morris LLP 30 South 17th Street Philadelphia PA 19103-4196 dkkapurduanemorriscom 215-979-1000 Attorney for Condemnor
Michael F Faherty Esq Bar ID 55860 Anthony M Corby Esq Bar ID 316852 75 Cedar Ave Hershey PA 17033 717-256-3000 mfahertvfahertylawfinncom acorbyfabertylawfirmco Attorney for Condemnees
15
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~g Un(fied Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that 111
-g E 0 e ~ require filing confidential information and documents differently than non-confidential
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- ~ ci ~ i IN RE LOWER MERION SCHOOL sect~ DISTRICT CONDEMNATION OF LAND Ii E KNOWN TO BE THE PROPERTY OF JOHN -~
pound g A BENNETT MD AND NANCE DI j ~ ROCCO KNOWN AS A PORTION OF TAX i II) Ill
~ MAP PARCEL NO 40-00-12868-00-7 ~ ~ LOWER MERION TOWNSHIP ~ ~ MONTGOMERY COUNTY ~ j PENNSYLVANIA FOR SCHOOL o ~ PURPOSES ~g ~sect II 0
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~ middot CONDEMNEES BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS TO ~ ~ DECLARATION OF TAKING O)~ -0 II)
~ 5 Condemnees John Bennett MD and Nance Di Rocco by and through their attorney ~8 ~~ o ic Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm hereby ~-g l Ill
sect ~ submit this Brief in Support of Preliminary Objections to the Declaration of Taking The SQgt e ci o~ ~ (I) Preliminary Objections are sectpound 8o ~~ CSA sect 306 (I)
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COUNTY PENNSYLVANIA
EMINENT DOMAIN - IN REM
middot NO 2018-29523 CIVIL
fi 1led pursuant to the Pennsylvania Eminent Domain Code 26 Pa
MATTER BEFORE THE COURT
~ - 1 Pleading Before the Court Condemnee s Preliminary Objections to Declaration of li ~~
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~ Taking ff ~o g E 2 Relief Requested ~Jg ClO Igt s ~~ 1 =It - Bl -a
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a Discovery and an evidentiary hearing
b Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
c The termination of condemnation
d Revesting of title in the name of John Bennett MD and Nance Di Rocco
e The reimbursement of costs and expenses to Condemnee by Condemnor including
reasonable appraisal attorney and engineering fees and other costs and expenses
actually incurred because of the condemnation proceedings 26 Pa CSA sect 306(g)
STATEMENT OF QUESTIONS INVOLVED
Question 1 Whether Lower Merion School District has the power and right to condemn
Condemnees property when the enabling Statute does not grant Condemnor the right to use
eminent domain and when the Condemnors decision to condemn was done in bad faith and was
arbitrary action equating an abuse of discretion
Suggested Answer No
FACTS
Condemnees own property commonly known as 1835 County Line Road Villanova Pa
19085 (tax parcel no 40-00-12868-00- 7) (the Property) The Property consists of approximately
106197 acres of land and contains two buildings The main building is an approximately 20000
sq ft mansion built in 1920 The second building is approximately 3000 sq ft and built in
approximately 2015 The land is situated next to Villanova University Condemnees purchased the
2
Property in 1997 and have resided there ever since Also currently residing at the property is the
Condemnees minor granddaughter MB
During this time Condemnees became close friends with Villanovas President Father
Peter Donahue Condemnees have hosted various University events at their home over the years
During this time Father Donahue conveyed the Universitys interest in purchasing the Property
Condemnees liked the idea of their property going to the University and always felt that someday
when they were ready to sell that they would sell it to the University Sometime around May of
2018 the Condemnees were contacted by real estate agent Stuart Dessner who relayed that the
Lower Merion School District (LMSD) might be interested in buying their property and their
neighbors property Preferring to sell to the University and knowing that Father Donahue always
wanted the University to have the Property Condemnees approached him and asked if the
University would be interested in buying the Property Father Donahue verbally offered $12
million dollars for the Property on behalf of the University and agreed to have the proper
paperwork drawn-up The University intended to maintain the historic buildings utilizing it in a
way that would not involve razing the property
LMSD learned that the University was interested in buying the Property for $12 million
dollars On or about June 27 2019 the Superintendent ofLMSD Rober L Copeland reached out
to Father Donahue and in an attempt to reduce the purchase price of the Property told Father
Donahue that $12 million dollars is too much for the Property Exhibit 1 Copeland told Father
Donahue that LMSD was interested in buying the Property from the Condemnees Id He wanted
to know how interested Villanova was in purchasing the property and how much Villanova would
be willing to pay Id Copeland then told Father Donahue that they valued the Property at $8 million
dollars Id Father Donahue then met with members of his cabinet and trustees who directed him
3
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
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6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
~~
acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating an abuse of discretion
Eubling Statute
44 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose but instead was to thwart the sale of the Property to
Villanova from whom LMSD could not legally condemn
45 The legislature may delegate the right to exercise eminent domain power but the
body to which the power is entrusted has no authority beyond that which is legislatively granted
Marple Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Commw Ct 2004)
middotNegotiations
46 The Public School Code permits a school district to condemn property when it
cannot agree on the terms of its purchase with the owner or owners 24 PS sect 7-721
4 7 School directors cannot pass resolutions effecting condemnation until there has
been a failure to agree to terms of purchase with owner of realty selected for school purposes Jury
v Wiest 193 A 5 7 (Pa 1937)
48 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because Condemnor and Condemnee did not disagree on the terms of the
purchase and were still negotiating
10
Not for School Purposes
49 The Public School Code permits LMSD to condemn for school purposes 24 PS
sect 7-721
50 The legislature has provided school district boards of directors with power to
acquire by condemnation real estate it may deem necessary to furnish school buildings or other
suitable sites for proper school purposes 24 PS sect 7-703
51 Our State Supreme Court has directed that a taking may be examined for its true
purpose and not just the purpose as stated in the declaration of taking Middletown Tp V Lands
of Stone 939 A2d 331 (Pa 2007)
52 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because the condemnation was not for school purposes
Fraud Collusion Bad Faith or Arbitran Action Eguatin2 an Abuse of Discretion
53 A Condemnors decision to condemn may be overturned where the record shows
fraud collusion bad faith or arbitrary action equating an abuse of discretion Weber v City
of Philadelphia 262 A2d 297299 (1970)(emphasis added)
54 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Code because the Condemnor s decision to
condemn was the result of fraud collusion bad faith or arbitrary constituting an abuse of
discretion
Suitable Investi2ation Leading to an Intelligent lnfonned Jud2111ent
11
55 Unless the property is acquired after a suitable investigation leading to an
intelligent informed judgment by the condemnor the condemnation is invalid In re Scho Dist
Of Pittsburg 244 A2d 42 46 (Pa 1968) ( citing Winger v Aires 89 A2d 521 (Pa 1952)
56 The Condemnor failed to do a suitable investigation leading to an intelligent
informed judgment by the condemnor because LMSD has no definite plans formulated as to the
use to be made of the condemned property no specifications as to the proposed building have yet
been indicated nor has any definitive location of the tract been designated for the intended
structure no estimate of construction is yet available no wetlands study has been completed nor
a final development plan a final architectural plan a final engineering plan proper zoning
approval a thorough needs assessment nor any other due diligence measures
ExcessiveUnnecessary Taking
57 Condemnor may not appropriate a greater amount of property than is reasonably
required for contemplated purpose Aweal ofWaite 641 A2d 25 (Pa Commw Ct 1994)
58 A condemnation may be overturned if it is found to be excessive Estate of Rochez
by Goslin 558 A2d 605 (Pa Commw Ct 1989) amended on reconsideration 566 A2d 631 (Pa
Commw Ct 1989)
59 The taking is excessiveunnecessary because the Condemnor only asserted a need
for 56 acres for fields originally whereas the Condemnees property is 106 acres
Future Use Within a Reasonable Time
60 Land may be condemned for future expansion even if it cannot presently be used
for the purposes stated in the declaration of taking as long as the land will in good faith be necessary
12
for future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324
(Pa Commw Ct 1977)
61 Condemnees property is not needed for a future use within a reasonable time
because Condemnor is leasing the property back to Condemnee for 5 years and is based on
assumptions and possibilities that have not been proven by the evidence
RELIEF REQUESTED
62 Pursuant to the Pennsylvania Eminent Domain Code the court shall determine
promptly all preliminary objections and make preliminary and final orders and decrees as justice
shall require including the revesting of title 26 Pa CSA sect 306 (f)(l)
63 Moreover ifan issue of fact is raised the court shall take evidence by depositions
or otherwise 26 Pa CSA sect 306 (f)(2)
64 When preliminary objections raise an issue of fact the court must hold an
evidentiary hearing 26 Pa CSA sect 306(f)(2) Ameal ofMcKonly 618 A2d 1169 (Pa Commw
Ct 1992)
65 The Condemnees have raised issues of fact in these Preliminary Objections
66 Discovery and an evidentiary hearing are required
67 Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
68 The termination of condemnation
69 Revesting of title in the name of John Bennett MD and Nance Di Rocco
70 The reimbursement of costs and expenses to Condemnee by Condemnor including
13
reasonable appraisal attorney and engineering fees and other costs and expenses actually incurred
because of the condemnation proceedings 26 Pa CSA sect 306(g)
71 Condemnees file concurrently herewith a Brief in Support per local rule 1028( c)
and incorporate it herein by reference
WHEREFORE for the reasons stated above Condemnees respectfully submit these
preliminary objections and request that the Court grant the reliefrequested above
Respectfully submitted
FAHERTY LAW FIRM
Dated February 7 2019
Michael F Faherty Esquire Atty Id 55860 mfaherty(fahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000 Counsel for Condemnees
14
CERTIFICATE OF SERVICE
I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing
document filed on February _J_ 2019 was sent to the following individuals via first class mail
on February _7_ 2019
Drew K Kapur Esq ID No 35018 Duane Morris LLP 30 South 17th Street Philadelphia PA 19103-4196 dkkapurduanemorriscom 215-979-1000 Attorney for Condemnor
Michael F Faherty Esq Bar ID 55860 Anthony M Corby Esq Bar ID 316852 75 Cedar Ave Hershey PA 17033 717-256-3000 mfahertvfahertylawfinncom acorbyfabertylawfirmco Attorney for Condemnees
15
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6(1) o C g ~ CERTIFICATE OF COMPLIANCE 00 0 g il tJ I certify that this filing complies with the provisions of the Public Access Policy of the ~i 0 C
~g Un(fied Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that 111
-g E 0 e ~ require filing confidential information and documents differently than non-confidential
~ ~ middot12 g information and documents -~ sect s e 0
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sect~ s -~ t Respectfully submitted ci ejg
~~ FAHERTY LAW FIRM secti ~ liE
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i ~ Michael F Faherty Esquire ~ ~ Attorney Id 55860 ~ ~ 7 5 Cedar A venue ~ j Hershey Pennsylvania 17033
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~ g Tel (717)256-3000 ~ 8 mfahertyfahertylawfirmcom ~ f Attorney for Plaintiffs
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5middot5 CI o- Dated February 7 2019 0~ lto-0)~ -0 II)
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osect ~ ~ IN THE COURT OF COMMON PLEAS OF MONTGOMERY sect ~ CIVIL DIVISION s II)
- ~ ci ~ i IN RE LOWER MERION SCHOOL sect~ DISTRICT CONDEMNATION OF LAND Ii E KNOWN TO BE THE PROPERTY OF JOHN -~
pound g A BENNETT MD AND NANCE DI j ~ ROCCO KNOWN AS A PORTION OF TAX i II) Ill
~ MAP PARCEL NO 40-00-12868-00-7 ~ ~ LOWER MERION TOWNSHIP ~ ~ MONTGOMERY COUNTY ~ j PENNSYLVANIA FOR SCHOOL o ~ PURPOSES ~g ~sect II 0
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~ middot CONDEMNEES BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS TO ~ ~ DECLARATION OF TAKING O)~ -0 II)
~ 5 Condemnees John Bennett MD and Nance Di Rocco by and through their attorney ~8 ~~ o ic Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm hereby ~-g l Ill
sect ~ submit this Brief in Support of Preliminary Objections to the Declaration of Taking The SQgt e ci o~ ~ (I) Preliminary Objections are sectpound 8o ~~ CSA sect 306 (I)
e8
W~ ~ _u l3
COUNTY PENNSYLVANIA
EMINENT DOMAIN - IN REM
middot NO 2018-29523 CIVIL
fi 1led pursuant to the Pennsylvania Eminent Domain Code 26 Pa
MATTER BEFORE THE COURT
~ - 1 Pleading Before the Court Condemnee s Preliminary Objections to Declaration of li ~~
8 0~
~ Taking ff ~o g E 2 Relief Requested ~Jg ClO Igt s ~~ 1 =It - Bl -a
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a Discovery and an evidentiary hearing
b Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
c The termination of condemnation
d Revesting of title in the name of John Bennett MD and Nance Di Rocco
e The reimbursement of costs and expenses to Condemnee by Condemnor including
reasonable appraisal attorney and engineering fees and other costs and expenses
actually incurred because of the condemnation proceedings 26 Pa CSA sect 306(g)
STATEMENT OF QUESTIONS INVOLVED
Question 1 Whether Lower Merion School District has the power and right to condemn
Condemnees property when the enabling Statute does not grant Condemnor the right to use
eminent domain and when the Condemnors decision to condemn was done in bad faith and was
arbitrary action equating an abuse of discretion
Suggested Answer No
FACTS
Condemnees own property commonly known as 1835 County Line Road Villanova Pa
19085 (tax parcel no 40-00-12868-00- 7) (the Property) The Property consists of approximately
106197 acres of land and contains two buildings The main building is an approximately 20000
sq ft mansion built in 1920 The second building is approximately 3000 sq ft and built in
approximately 2015 The land is situated next to Villanova University Condemnees purchased the
2
Property in 1997 and have resided there ever since Also currently residing at the property is the
Condemnees minor granddaughter MB
During this time Condemnees became close friends with Villanovas President Father
Peter Donahue Condemnees have hosted various University events at their home over the years
During this time Father Donahue conveyed the Universitys interest in purchasing the Property
Condemnees liked the idea of their property going to the University and always felt that someday
when they were ready to sell that they would sell it to the University Sometime around May of
2018 the Condemnees were contacted by real estate agent Stuart Dessner who relayed that the
Lower Merion School District (LMSD) might be interested in buying their property and their
neighbors property Preferring to sell to the University and knowing that Father Donahue always
wanted the University to have the Property Condemnees approached him and asked if the
University would be interested in buying the Property Father Donahue verbally offered $12
million dollars for the Property on behalf of the University and agreed to have the proper
paperwork drawn-up The University intended to maintain the historic buildings utilizing it in a
way that would not involve razing the property
LMSD learned that the University was interested in buying the Property for $12 million
dollars On or about June 27 2019 the Superintendent ofLMSD Rober L Copeland reached out
to Father Donahue and in an attempt to reduce the purchase price of the Property told Father
Donahue that $12 million dollars is too much for the Property Exhibit 1 Copeland told Father
Donahue that LMSD was interested in buying the Property from the Condemnees Id He wanted
to know how interested Villanova was in purchasing the property and how much Villanova would
be willing to pay Id Copeland then told Father Donahue that they valued the Property at $8 million
dollars Id Father Donahue then met with members of his cabinet and trustees who directed him
3
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
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6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
~~
acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
Not for School Purposes
49 The Public School Code permits LMSD to condemn for school purposes 24 PS
sect 7-721
50 The legislature has provided school district boards of directors with power to
acquire by condemnation real estate it may deem necessary to furnish school buildings or other
suitable sites for proper school purposes 24 PS sect 7-703
51 Our State Supreme Court has directed that a taking may be examined for its true
purpose and not just the purpose as stated in the declaration of taking Middletown Tp V Lands
of Stone 939 A2d 331 (Pa 2007)
52 The condemnation enabling statute does not give LMSD the right to condemn
Condemnees property because the condemnation was not for school purposes
Fraud Collusion Bad Faith or Arbitran Action Eguatin2 an Abuse of Discretion
53 A Condemnors decision to condemn may be overturned where the record shows
fraud collusion bad faith or arbitrary action equating an abuse of discretion Weber v City
of Philadelphia 262 A2d 297299 (1970)(emphasis added)
54 The condemnation of Condemnees property is beyond the eminent domain power
vested in the Condemnor by the Public School Code because the Condemnor s decision to
condemn was the result of fraud collusion bad faith or arbitrary constituting an abuse of
discretion
Suitable Investi2ation Leading to an Intelligent lnfonned Jud2111ent
11
55 Unless the property is acquired after a suitable investigation leading to an
intelligent informed judgment by the condemnor the condemnation is invalid In re Scho Dist
Of Pittsburg 244 A2d 42 46 (Pa 1968) ( citing Winger v Aires 89 A2d 521 (Pa 1952)
56 The Condemnor failed to do a suitable investigation leading to an intelligent
informed judgment by the condemnor because LMSD has no definite plans formulated as to the
use to be made of the condemned property no specifications as to the proposed building have yet
been indicated nor has any definitive location of the tract been designated for the intended
structure no estimate of construction is yet available no wetlands study has been completed nor
a final development plan a final architectural plan a final engineering plan proper zoning
approval a thorough needs assessment nor any other due diligence measures
ExcessiveUnnecessary Taking
57 Condemnor may not appropriate a greater amount of property than is reasonably
required for contemplated purpose Aweal ofWaite 641 A2d 25 (Pa Commw Ct 1994)
58 A condemnation may be overturned if it is found to be excessive Estate of Rochez
by Goslin 558 A2d 605 (Pa Commw Ct 1989) amended on reconsideration 566 A2d 631 (Pa
Commw Ct 1989)
59 The taking is excessiveunnecessary because the Condemnor only asserted a need
for 56 acres for fields originally whereas the Condemnees property is 106 acres
Future Use Within a Reasonable Time
60 Land may be condemned for future expansion even if it cannot presently be used
for the purposes stated in the declaration of taking as long as the land will in good faith be necessary
12
for future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324
(Pa Commw Ct 1977)
61 Condemnees property is not needed for a future use within a reasonable time
because Condemnor is leasing the property back to Condemnee for 5 years and is based on
assumptions and possibilities that have not been proven by the evidence
RELIEF REQUESTED
62 Pursuant to the Pennsylvania Eminent Domain Code the court shall determine
promptly all preliminary objections and make preliminary and final orders and decrees as justice
shall require including the revesting of title 26 Pa CSA sect 306 (f)(l)
63 Moreover ifan issue of fact is raised the court shall take evidence by depositions
or otherwise 26 Pa CSA sect 306 (f)(2)
64 When preliminary objections raise an issue of fact the court must hold an
evidentiary hearing 26 Pa CSA sect 306(f)(2) Ameal ofMcKonly 618 A2d 1169 (Pa Commw
Ct 1992)
65 The Condemnees have raised issues of fact in these Preliminary Objections
66 Discovery and an evidentiary hearing are required
67 Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
68 The termination of condemnation
69 Revesting of title in the name of John Bennett MD and Nance Di Rocco
70 The reimbursement of costs and expenses to Condemnee by Condemnor including
13
reasonable appraisal attorney and engineering fees and other costs and expenses actually incurred
because of the condemnation proceedings 26 Pa CSA sect 306(g)
71 Condemnees file concurrently herewith a Brief in Support per local rule 1028( c)
and incorporate it herein by reference
WHEREFORE for the reasons stated above Condemnees respectfully submit these
preliminary objections and request that the Court grant the reliefrequested above
Respectfully submitted
FAHERTY LAW FIRM
Dated February 7 2019
Michael F Faherty Esquire Atty Id 55860 mfaherty(fahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000 Counsel for Condemnees
14
CERTIFICATE OF SERVICE
I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing
document filed on February _J_ 2019 was sent to the following individuals via first class mail
on February _7_ 2019
Drew K Kapur Esq ID No 35018 Duane Morris LLP 30 South 17th Street Philadelphia PA 19103-4196 dkkapurduanemorriscom 215-979-1000 Attorney for Condemnor
Michael F Faherty Esq Bar ID 55860 Anthony M Corby Esq Bar ID 316852 75 Cedar Ave Hershey PA 17033 717-256-3000 mfahertvfahertylawfinncom acorbyfabertylawfirmco Attorney for Condemnees
15
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~g Un(fied Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that 111
-g E 0 e ~ require filing confidential information and documents differently than non-confidential
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~~ FAHERTY LAW FIRM secti ~ liE
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- ~ ci ~ i IN RE LOWER MERION SCHOOL sect~ DISTRICT CONDEMNATION OF LAND Ii E KNOWN TO BE THE PROPERTY OF JOHN -~
pound g A BENNETT MD AND NANCE DI j ~ ROCCO KNOWN AS A PORTION OF TAX i II) Ill
~ MAP PARCEL NO 40-00-12868-00-7 ~ ~ LOWER MERION TOWNSHIP ~ ~ MONTGOMERY COUNTY ~ j PENNSYLVANIA FOR SCHOOL o ~ PURPOSES ~g ~sect II 0
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~ middot CONDEMNEES BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS TO ~ ~ DECLARATION OF TAKING O)~ -0 II)
~ 5 Condemnees John Bennett MD and Nance Di Rocco by and through their attorney ~8 ~~ o ic Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm hereby ~-g l Ill
sect ~ submit this Brief in Support of Preliminary Objections to the Declaration of Taking The SQgt e ci o~ ~ (I) Preliminary Objections are sectpound 8o ~~ CSA sect 306 (I)
e8
W~ ~ _u l3
COUNTY PENNSYLVANIA
EMINENT DOMAIN - IN REM
middot NO 2018-29523 CIVIL
fi 1led pursuant to the Pennsylvania Eminent Domain Code 26 Pa
MATTER BEFORE THE COURT
~ - 1 Pleading Before the Court Condemnee s Preliminary Objections to Declaration of li ~~
8 0~
~ Taking ff ~o g E 2 Relief Requested ~Jg ClO Igt s ~~ 1 =It - Bl -a
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a Discovery and an evidentiary hearing
b Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
c The termination of condemnation
d Revesting of title in the name of John Bennett MD and Nance Di Rocco
e The reimbursement of costs and expenses to Condemnee by Condemnor including
reasonable appraisal attorney and engineering fees and other costs and expenses
actually incurred because of the condemnation proceedings 26 Pa CSA sect 306(g)
STATEMENT OF QUESTIONS INVOLVED
Question 1 Whether Lower Merion School District has the power and right to condemn
Condemnees property when the enabling Statute does not grant Condemnor the right to use
eminent domain and when the Condemnors decision to condemn was done in bad faith and was
arbitrary action equating an abuse of discretion
Suggested Answer No
FACTS
Condemnees own property commonly known as 1835 County Line Road Villanova Pa
19085 (tax parcel no 40-00-12868-00- 7) (the Property) The Property consists of approximately
106197 acres of land and contains two buildings The main building is an approximately 20000
sq ft mansion built in 1920 The second building is approximately 3000 sq ft and built in
approximately 2015 The land is situated next to Villanova University Condemnees purchased the
2
Property in 1997 and have resided there ever since Also currently residing at the property is the
Condemnees minor granddaughter MB
During this time Condemnees became close friends with Villanovas President Father
Peter Donahue Condemnees have hosted various University events at their home over the years
During this time Father Donahue conveyed the Universitys interest in purchasing the Property
Condemnees liked the idea of their property going to the University and always felt that someday
when they were ready to sell that they would sell it to the University Sometime around May of
2018 the Condemnees were contacted by real estate agent Stuart Dessner who relayed that the
Lower Merion School District (LMSD) might be interested in buying their property and their
neighbors property Preferring to sell to the University and knowing that Father Donahue always
wanted the University to have the Property Condemnees approached him and asked if the
University would be interested in buying the Property Father Donahue verbally offered $12
million dollars for the Property on behalf of the University and agreed to have the proper
paperwork drawn-up The University intended to maintain the historic buildings utilizing it in a
way that would not involve razing the property
LMSD learned that the University was interested in buying the Property for $12 million
dollars On or about June 27 2019 the Superintendent ofLMSD Rober L Copeland reached out
to Father Donahue and in an attempt to reduce the purchase price of the Property told Father
Donahue that $12 million dollars is too much for the Property Exhibit 1 Copeland told Father
Donahue that LMSD was interested in buying the Property from the Condemnees Id He wanted
to know how interested Villanova was in purchasing the property and how much Villanova would
be willing to pay Id Copeland then told Father Donahue that they valued the Property at $8 million
dollars Id Father Donahue then met with members of his cabinet and trustees who directed him
3
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
tJ
~ sect (I)
6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
~~
acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System 1of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum~nts -- -
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
55 Unless the property is acquired after a suitable investigation leading to an
intelligent informed judgment by the condemnor the condemnation is invalid In re Scho Dist
Of Pittsburg 244 A2d 42 46 (Pa 1968) ( citing Winger v Aires 89 A2d 521 (Pa 1952)
56 The Condemnor failed to do a suitable investigation leading to an intelligent
informed judgment by the condemnor because LMSD has no definite plans formulated as to the
use to be made of the condemned property no specifications as to the proposed building have yet
been indicated nor has any definitive location of the tract been designated for the intended
structure no estimate of construction is yet available no wetlands study has been completed nor
a final development plan a final architectural plan a final engineering plan proper zoning
approval a thorough needs assessment nor any other due diligence measures
ExcessiveUnnecessary Taking
57 Condemnor may not appropriate a greater amount of property than is reasonably
required for contemplated purpose Aweal ofWaite 641 A2d 25 (Pa Commw Ct 1994)
58 A condemnation may be overturned if it is found to be excessive Estate of Rochez
by Goslin 558 A2d 605 (Pa Commw Ct 1989) amended on reconsideration 566 A2d 631 (Pa
Commw Ct 1989)
59 The taking is excessiveunnecessary because the Condemnor only asserted a need
for 56 acres for fields originally whereas the Condemnees property is 106 acres
Future Use Within a Reasonable Time
60 Land may be condemned for future expansion even if it cannot presently be used
for the purposes stated in the declaration of taking as long as the land will in good faith be necessary
12
for future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324
(Pa Commw Ct 1977)
61 Condemnees property is not needed for a future use within a reasonable time
because Condemnor is leasing the property back to Condemnee for 5 years and is based on
assumptions and possibilities that have not been proven by the evidence
RELIEF REQUESTED
62 Pursuant to the Pennsylvania Eminent Domain Code the court shall determine
promptly all preliminary objections and make preliminary and final orders and decrees as justice
shall require including the revesting of title 26 Pa CSA sect 306 (f)(l)
63 Moreover ifan issue of fact is raised the court shall take evidence by depositions
or otherwise 26 Pa CSA sect 306 (f)(2)
64 When preliminary objections raise an issue of fact the court must hold an
evidentiary hearing 26 Pa CSA sect 306(f)(2) Ameal ofMcKonly 618 A2d 1169 (Pa Commw
Ct 1992)
65 The Condemnees have raised issues of fact in these Preliminary Objections
66 Discovery and an evidentiary hearing are required
67 Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
68 The termination of condemnation
69 Revesting of title in the name of John Bennett MD and Nance Di Rocco
70 The reimbursement of costs and expenses to Condemnee by Condemnor including
13
reasonable appraisal attorney and engineering fees and other costs and expenses actually incurred
because of the condemnation proceedings 26 Pa CSA sect 306(g)
71 Condemnees file concurrently herewith a Brief in Support per local rule 1028( c)
and incorporate it herein by reference
WHEREFORE for the reasons stated above Condemnees respectfully submit these
preliminary objections and request that the Court grant the reliefrequested above
Respectfully submitted
FAHERTY LAW FIRM
Dated February 7 2019
Michael F Faherty Esquire Atty Id 55860 mfaherty(fahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000 Counsel for Condemnees
14
CERTIFICATE OF SERVICE
I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing
document filed on February _J_ 2019 was sent to the following individuals via first class mail
on February _7_ 2019
Drew K Kapur Esq ID No 35018 Duane Morris LLP 30 South 17th Street Philadelphia PA 19103-4196 dkkapurduanemorriscom 215-979-1000 Attorney for Condemnor
Michael F Faherty Esq Bar ID 55860 Anthony M Corby Esq Bar ID 316852 75 Cedar Ave Hershey PA 17033 717-256-3000 mfahertvfahertylawfinncom acorbyfabertylawfirmco Attorney for Condemnees
15
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6(1) o C g ~ CERTIFICATE OF COMPLIANCE 00 0 g il tJ I certify that this filing complies with the provisions of the Public Access Policy of the ~i 0 C
~g Un(fied Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that 111
-g E 0 e ~ require filing confidential information and documents differently than non-confidential
~ ~ middot12 g information and documents -~ sect s e 0
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sect~ s -~ t Respectfully submitted ci ejg
~~ FAHERTY LAW FIRM secti ~ liE
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i ~ Michael F Faherty Esquire ~ ~ Attorney Id 55860 ~ ~ 7 5 Cedar A venue ~ j Hershey Pennsylvania 17033
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~ g Tel (717)256-3000 ~ 8 mfahertyfahertylawfirmcom ~ f Attorney for Plaintiffs
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osect ~ ~ IN THE COURT OF COMMON PLEAS OF MONTGOMERY sect ~ CIVIL DIVISION s II)
- ~ ci ~ i IN RE LOWER MERION SCHOOL sect~ DISTRICT CONDEMNATION OF LAND Ii E KNOWN TO BE THE PROPERTY OF JOHN -~
pound g A BENNETT MD AND NANCE DI j ~ ROCCO KNOWN AS A PORTION OF TAX i II) Ill
~ MAP PARCEL NO 40-00-12868-00-7 ~ ~ LOWER MERION TOWNSHIP ~ ~ MONTGOMERY COUNTY ~ j PENNSYLVANIA FOR SCHOOL o ~ PURPOSES ~g ~sect II 0
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~ middot CONDEMNEES BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS TO ~ ~ DECLARATION OF TAKING O)~ -0 II)
~ 5 Condemnees John Bennett MD and Nance Di Rocco by and through their attorney ~8 ~~ o ic Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm hereby ~-g l Ill
sect ~ submit this Brief in Support of Preliminary Objections to the Declaration of Taking The SQgt e ci o~ ~ (I) Preliminary Objections are sectpound 8o ~~ CSA sect 306 (I)
e8
W~ ~ _u l3
COUNTY PENNSYLVANIA
EMINENT DOMAIN - IN REM
middot NO 2018-29523 CIVIL
fi 1led pursuant to the Pennsylvania Eminent Domain Code 26 Pa
MATTER BEFORE THE COURT
~ - 1 Pleading Before the Court Condemnee s Preliminary Objections to Declaration of li ~~
8 0~
~ Taking ff ~o g E 2 Relief Requested ~Jg ClO Igt s ~~ 1 =It - Bl -a
~~
a Discovery and an evidentiary hearing
b Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
c The termination of condemnation
d Revesting of title in the name of John Bennett MD and Nance Di Rocco
e The reimbursement of costs and expenses to Condemnee by Condemnor including
reasonable appraisal attorney and engineering fees and other costs and expenses
actually incurred because of the condemnation proceedings 26 Pa CSA sect 306(g)
STATEMENT OF QUESTIONS INVOLVED
Question 1 Whether Lower Merion School District has the power and right to condemn
Condemnees property when the enabling Statute does not grant Condemnor the right to use
eminent domain and when the Condemnors decision to condemn was done in bad faith and was
arbitrary action equating an abuse of discretion
Suggested Answer No
FACTS
Condemnees own property commonly known as 1835 County Line Road Villanova Pa
19085 (tax parcel no 40-00-12868-00- 7) (the Property) The Property consists of approximately
106197 acres of land and contains two buildings The main building is an approximately 20000
sq ft mansion built in 1920 The second building is approximately 3000 sq ft and built in
approximately 2015 The land is situated next to Villanova University Condemnees purchased the
2
Property in 1997 and have resided there ever since Also currently residing at the property is the
Condemnees minor granddaughter MB
During this time Condemnees became close friends with Villanovas President Father
Peter Donahue Condemnees have hosted various University events at their home over the years
During this time Father Donahue conveyed the Universitys interest in purchasing the Property
Condemnees liked the idea of their property going to the University and always felt that someday
when they were ready to sell that they would sell it to the University Sometime around May of
2018 the Condemnees were contacted by real estate agent Stuart Dessner who relayed that the
Lower Merion School District (LMSD) might be interested in buying their property and their
neighbors property Preferring to sell to the University and knowing that Father Donahue always
wanted the University to have the Property Condemnees approached him and asked if the
University would be interested in buying the Property Father Donahue verbally offered $12
million dollars for the Property on behalf of the University and agreed to have the proper
paperwork drawn-up The University intended to maintain the historic buildings utilizing it in a
way that would not involve razing the property
LMSD learned that the University was interested in buying the Property for $12 million
dollars On or about June 27 2019 the Superintendent ofLMSD Rober L Copeland reached out
to Father Donahue and in an attempt to reduce the purchase price of the Property told Father
Donahue that $12 million dollars is too much for the Property Exhibit 1 Copeland told Father
Donahue that LMSD was interested in buying the Property from the Condemnees Id He wanted
to know how interested Villanova was in purchasing the property and how much Villanova would
be willing to pay Id Copeland then told Father Donahue that they valued the Property at $8 million
dollars Id Father Donahue then met with members of his cabinet and trustees who directed him
3
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
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~ sect (I)
6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
~~
acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
~ lll Anthony M Corby Esq C
~ ~ g Bar ID 316852 II
sect 0
75 Cedar Ave ~ Hershey PA 17033 ti 717-256-3000 CI o- mfahertyfahertylawfirmcom 0~ ~ ~ acorbyfahertylawfinnco o - Attorney for Condemnees ~5 ~8 ~~ ofc
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
for future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324
(Pa Commw Ct 1977)
61 Condemnees property is not needed for a future use within a reasonable time
because Condemnor is leasing the property back to Condemnee for 5 years and is based on
assumptions and possibilities that have not been proven by the evidence
RELIEF REQUESTED
62 Pursuant to the Pennsylvania Eminent Domain Code the court shall determine
promptly all preliminary objections and make preliminary and final orders and decrees as justice
shall require including the revesting of title 26 Pa CSA sect 306 (f)(l)
63 Moreover ifan issue of fact is raised the court shall take evidence by depositions
or otherwise 26 Pa CSA sect 306 (f)(2)
64 When preliminary objections raise an issue of fact the court must hold an
evidentiary hearing 26 Pa CSA sect 306(f)(2) Ameal ofMcKonly 618 A2d 1169 (Pa Commw
Ct 1992)
65 The Condemnees have raised issues of fact in these Preliminary Objections
66 Discovery and an evidentiary hearing are required
67 Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
68 The termination of condemnation
69 Revesting of title in the name of John Bennett MD and Nance Di Rocco
70 The reimbursement of costs and expenses to Condemnee by Condemnor including
13
reasonable appraisal attorney and engineering fees and other costs and expenses actually incurred
because of the condemnation proceedings 26 Pa CSA sect 306(g)
71 Condemnees file concurrently herewith a Brief in Support per local rule 1028( c)
and incorporate it herein by reference
WHEREFORE for the reasons stated above Condemnees respectfully submit these
preliminary objections and request that the Court grant the reliefrequested above
Respectfully submitted
FAHERTY LAW FIRM
Dated February 7 2019
Michael F Faherty Esquire Atty Id 55860 mfaherty(fahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000 Counsel for Condemnees
14
CERTIFICATE OF SERVICE
I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing
document filed on February _J_ 2019 was sent to the following individuals via first class mail
on February _7_ 2019
Drew K Kapur Esq ID No 35018 Duane Morris LLP 30 South 17th Street Philadelphia PA 19103-4196 dkkapurduanemorriscom 215-979-1000 Attorney for Condemnor
Michael F Faherty Esq Bar ID 55860 Anthony M Corby Esq Bar ID 316852 75 Cedar Ave Hershey PA 17033 717-256-3000 mfahertvfahertylawfinncom acorbyfabertylawfirmco Attorney for Condemnees
15
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6(1) o C g ~ CERTIFICATE OF COMPLIANCE 00 0 g il tJ I certify that this filing complies with the provisions of the Public Access Policy of the ~i 0 C
~g Un(fied Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that 111
-g E 0 e ~ require filing confidential information and documents differently than non-confidential
~ ~ middot12 g information and documents -~ sect s e 0
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sect~ s -~ t Respectfully submitted ci ejg
~~ FAHERTY LAW FIRM secti ~ liE
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i ~ Michael F Faherty Esquire ~ ~ Attorney Id 55860 ~ ~ 7 5 Cedar A venue ~ j Hershey Pennsylvania 17033
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~ g Tel (717)256-3000 ~ 8 mfahertyfahertylawfirmcom ~ f Attorney for Plaintiffs
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osect ~ ~ IN THE COURT OF COMMON PLEAS OF MONTGOMERY sect ~ CIVIL DIVISION s II)
- ~ ci ~ i IN RE LOWER MERION SCHOOL sect~ DISTRICT CONDEMNATION OF LAND Ii E KNOWN TO BE THE PROPERTY OF JOHN -~
pound g A BENNETT MD AND NANCE DI j ~ ROCCO KNOWN AS A PORTION OF TAX i II) Ill
~ MAP PARCEL NO 40-00-12868-00-7 ~ ~ LOWER MERION TOWNSHIP ~ ~ MONTGOMERY COUNTY ~ j PENNSYLVANIA FOR SCHOOL o ~ PURPOSES ~g ~sect II 0
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~ middot CONDEMNEES BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS TO ~ ~ DECLARATION OF TAKING O)~ -0 II)
~ 5 Condemnees John Bennett MD and Nance Di Rocco by and through their attorney ~8 ~~ o ic Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm hereby ~-g l Ill
sect ~ submit this Brief in Support of Preliminary Objections to the Declaration of Taking The SQgt e ci o~ ~ (I) Preliminary Objections are sectpound 8o ~~ CSA sect 306 (I)
e8
W~ ~ _u l3
COUNTY PENNSYLVANIA
EMINENT DOMAIN - IN REM
middot NO 2018-29523 CIVIL
fi 1led pursuant to the Pennsylvania Eminent Domain Code 26 Pa
MATTER BEFORE THE COURT
~ - 1 Pleading Before the Court Condemnee s Preliminary Objections to Declaration of li ~~
8 0~
~ Taking ff ~o g E 2 Relief Requested ~Jg ClO Igt s ~~ 1 =It - Bl -a
~~
a Discovery and an evidentiary hearing
b Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
c The termination of condemnation
d Revesting of title in the name of John Bennett MD and Nance Di Rocco
e The reimbursement of costs and expenses to Condemnee by Condemnor including
reasonable appraisal attorney and engineering fees and other costs and expenses
actually incurred because of the condemnation proceedings 26 Pa CSA sect 306(g)
STATEMENT OF QUESTIONS INVOLVED
Question 1 Whether Lower Merion School District has the power and right to condemn
Condemnees property when the enabling Statute does not grant Condemnor the right to use
eminent domain and when the Condemnors decision to condemn was done in bad faith and was
arbitrary action equating an abuse of discretion
Suggested Answer No
FACTS
Condemnees own property commonly known as 1835 County Line Road Villanova Pa
19085 (tax parcel no 40-00-12868-00- 7) (the Property) The Property consists of approximately
106197 acres of land and contains two buildings The main building is an approximately 20000
sq ft mansion built in 1920 The second building is approximately 3000 sq ft and built in
approximately 2015 The land is situated next to Villanova University Condemnees purchased the
2
Property in 1997 and have resided there ever since Also currently residing at the property is the
Condemnees minor granddaughter MB
During this time Condemnees became close friends with Villanovas President Father
Peter Donahue Condemnees have hosted various University events at their home over the years
During this time Father Donahue conveyed the Universitys interest in purchasing the Property
Condemnees liked the idea of their property going to the University and always felt that someday
when they were ready to sell that they would sell it to the University Sometime around May of
2018 the Condemnees were contacted by real estate agent Stuart Dessner who relayed that the
Lower Merion School District (LMSD) might be interested in buying their property and their
neighbors property Preferring to sell to the University and knowing that Father Donahue always
wanted the University to have the Property Condemnees approached him and asked if the
University would be interested in buying the Property Father Donahue verbally offered $12
million dollars for the Property on behalf of the University and agreed to have the proper
paperwork drawn-up The University intended to maintain the historic buildings utilizing it in a
way that would not involve razing the property
LMSD learned that the University was interested in buying the Property for $12 million
dollars On or about June 27 2019 the Superintendent ofLMSD Rober L Copeland reached out
to Father Donahue and in an attempt to reduce the purchase price of the Property told Father
Donahue that $12 million dollars is too much for the Property Exhibit 1 Copeland told Father
Donahue that LMSD was interested in buying the Property from the Condemnees Id He wanted
to know how interested Villanova was in purchasing the property and how much Villanova would
be willing to pay Id Copeland then told Father Donahue that they valued the Property at $8 million
dollars Id Father Donahue then met with members of his cabinet and trustees who directed him
3
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
tJ
~ sect (I)
6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
~~
acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
reasonable appraisal attorney and engineering fees and other costs and expenses actually incurred
because of the condemnation proceedings 26 Pa CSA sect 306(g)
71 Condemnees file concurrently herewith a Brief in Support per local rule 1028( c)
and incorporate it herein by reference
WHEREFORE for the reasons stated above Condemnees respectfully submit these
preliminary objections and request that the Court grant the reliefrequested above
Respectfully submitted
FAHERTY LAW FIRM
Dated February 7 2019
Michael F Faherty Esquire Atty Id 55860 mfaherty(fahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000 Counsel for Condemnees
14
CERTIFICATE OF SERVICE
I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing
document filed on February _J_ 2019 was sent to the following individuals via first class mail
on February _7_ 2019
Drew K Kapur Esq ID No 35018 Duane Morris LLP 30 South 17th Street Philadelphia PA 19103-4196 dkkapurduanemorriscom 215-979-1000 Attorney for Condemnor
Michael F Faherty Esq Bar ID 55860 Anthony M Corby Esq Bar ID 316852 75 Cedar Ave Hershey PA 17033 717-256-3000 mfahertvfahertylawfinncom acorbyfabertylawfirmco Attorney for Condemnees
15
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- ~ ci ~ i IN RE LOWER MERION SCHOOL sect~ DISTRICT CONDEMNATION OF LAND Ii E KNOWN TO BE THE PROPERTY OF JOHN -~
pound g A BENNETT MD AND NANCE DI j ~ ROCCO KNOWN AS A PORTION OF TAX i II) Ill
~ MAP PARCEL NO 40-00-12868-00-7 ~ ~ LOWER MERION TOWNSHIP ~ ~ MONTGOMERY COUNTY ~ j PENNSYLVANIA FOR SCHOOL o ~ PURPOSES ~g ~sect II 0
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sect ~ submit this Brief in Support of Preliminary Objections to the Declaration of Taking The SQgt e ci o~ ~ (I) Preliminary Objections are sectpound 8o ~~ CSA sect 306 (I)
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COUNTY PENNSYLVANIA
EMINENT DOMAIN - IN REM
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fi 1led pursuant to the Pennsylvania Eminent Domain Code 26 Pa
MATTER BEFORE THE COURT
~ - 1 Pleading Before the Court Condemnee s Preliminary Objections to Declaration of li ~~
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a Discovery and an evidentiary hearing
b Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
c The termination of condemnation
d Revesting of title in the name of John Bennett MD and Nance Di Rocco
e The reimbursement of costs and expenses to Condemnee by Condemnor including
reasonable appraisal attorney and engineering fees and other costs and expenses
actually incurred because of the condemnation proceedings 26 Pa CSA sect 306(g)
STATEMENT OF QUESTIONS INVOLVED
Question 1 Whether Lower Merion School District has the power and right to condemn
Condemnees property when the enabling Statute does not grant Condemnor the right to use
eminent domain and when the Condemnors decision to condemn was done in bad faith and was
arbitrary action equating an abuse of discretion
Suggested Answer No
FACTS
Condemnees own property commonly known as 1835 County Line Road Villanova Pa
19085 (tax parcel no 40-00-12868-00- 7) (the Property) The Property consists of approximately
106197 acres of land and contains two buildings The main building is an approximately 20000
sq ft mansion built in 1920 The second building is approximately 3000 sq ft and built in
approximately 2015 The land is situated next to Villanova University Condemnees purchased the
2
Property in 1997 and have resided there ever since Also currently residing at the property is the
Condemnees minor granddaughter MB
During this time Condemnees became close friends with Villanovas President Father
Peter Donahue Condemnees have hosted various University events at their home over the years
During this time Father Donahue conveyed the Universitys interest in purchasing the Property
Condemnees liked the idea of their property going to the University and always felt that someday
when they were ready to sell that they would sell it to the University Sometime around May of
2018 the Condemnees were contacted by real estate agent Stuart Dessner who relayed that the
Lower Merion School District (LMSD) might be interested in buying their property and their
neighbors property Preferring to sell to the University and knowing that Father Donahue always
wanted the University to have the Property Condemnees approached him and asked if the
University would be interested in buying the Property Father Donahue verbally offered $12
million dollars for the Property on behalf of the University and agreed to have the proper
paperwork drawn-up The University intended to maintain the historic buildings utilizing it in a
way that would not involve razing the property
LMSD learned that the University was interested in buying the Property for $12 million
dollars On or about June 27 2019 the Superintendent ofLMSD Rober L Copeland reached out
to Father Donahue and in an attempt to reduce the purchase price of the Property told Father
Donahue that $12 million dollars is too much for the Property Exhibit 1 Copeland told Father
Donahue that LMSD was interested in buying the Property from the Condemnees Id He wanted
to know how interested Villanova was in purchasing the property and how much Villanova would
be willing to pay Id Copeland then told Father Donahue that they valued the Property at $8 million
dollars Id Father Donahue then met with members of his cabinet and trustees who directed him
3
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
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6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
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acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
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CERTIFICATE OF SERVICE
I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing
document filed on February _J_ 2019 was sent to the following individuals via first class mail
on February _7_ 2019
Drew K Kapur Esq ID No 35018 Duane Morris LLP 30 South 17th Street Philadelphia PA 19103-4196 dkkapurduanemorriscom 215-979-1000 Attorney for Condemnor
Michael F Faherty Esq Bar ID 55860 Anthony M Corby Esq Bar ID 316852 75 Cedar Ave Hershey PA 17033 717-256-3000 mfahertvfahertylawfinncom acorbyfabertylawfirmco Attorney for Condemnees
15
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~~ FAHERTY LAW FIRM secti ~ liE
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- ~ ci ~ i IN RE LOWER MERION SCHOOL sect~ DISTRICT CONDEMNATION OF LAND Ii E KNOWN TO BE THE PROPERTY OF JOHN -~
pound g A BENNETT MD AND NANCE DI j ~ ROCCO KNOWN AS A PORTION OF TAX i II) Ill
~ MAP PARCEL NO 40-00-12868-00-7 ~ ~ LOWER MERION TOWNSHIP ~ ~ MONTGOMERY COUNTY ~ j PENNSYLVANIA FOR SCHOOL o ~ PURPOSES ~g ~sect II 0
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~ 5 Condemnees John Bennett MD and Nance Di Rocco by and through their attorney ~8 ~~ o ic Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm hereby ~-g l Ill
sect ~ submit this Brief in Support of Preliminary Objections to the Declaration of Taking The SQgt e ci o~ ~ (I) Preliminary Objections are sectpound 8o ~~ CSA sect 306 (I)
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COUNTY PENNSYLVANIA
EMINENT DOMAIN - IN REM
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fi 1led pursuant to the Pennsylvania Eminent Domain Code 26 Pa
MATTER BEFORE THE COURT
~ - 1 Pleading Before the Court Condemnee s Preliminary Objections to Declaration of li ~~
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a Discovery and an evidentiary hearing
b Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
c The termination of condemnation
d Revesting of title in the name of John Bennett MD and Nance Di Rocco
e The reimbursement of costs and expenses to Condemnee by Condemnor including
reasonable appraisal attorney and engineering fees and other costs and expenses
actually incurred because of the condemnation proceedings 26 Pa CSA sect 306(g)
STATEMENT OF QUESTIONS INVOLVED
Question 1 Whether Lower Merion School District has the power and right to condemn
Condemnees property when the enabling Statute does not grant Condemnor the right to use
eminent domain and when the Condemnors decision to condemn was done in bad faith and was
arbitrary action equating an abuse of discretion
Suggested Answer No
FACTS
Condemnees own property commonly known as 1835 County Line Road Villanova Pa
19085 (tax parcel no 40-00-12868-00- 7) (the Property) The Property consists of approximately
106197 acres of land and contains two buildings The main building is an approximately 20000
sq ft mansion built in 1920 The second building is approximately 3000 sq ft and built in
approximately 2015 The land is situated next to Villanova University Condemnees purchased the
2
Property in 1997 and have resided there ever since Also currently residing at the property is the
Condemnees minor granddaughter MB
During this time Condemnees became close friends with Villanovas President Father
Peter Donahue Condemnees have hosted various University events at their home over the years
During this time Father Donahue conveyed the Universitys interest in purchasing the Property
Condemnees liked the idea of their property going to the University and always felt that someday
when they were ready to sell that they would sell it to the University Sometime around May of
2018 the Condemnees were contacted by real estate agent Stuart Dessner who relayed that the
Lower Merion School District (LMSD) might be interested in buying their property and their
neighbors property Preferring to sell to the University and knowing that Father Donahue always
wanted the University to have the Property Condemnees approached him and asked if the
University would be interested in buying the Property Father Donahue verbally offered $12
million dollars for the Property on behalf of the University and agreed to have the proper
paperwork drawn-up The University intended to maintain the historic buildings utilizing it in a
way that would not involve razing the property
LMSD learned that the University was interested in buying the Property for $12 million
dollars On or about June 27 2019 the Superintendent ofLMSD Rober L Copeland reached out
to Father Donahue and in an attempt to reduce the purchase price of the Property told Father
Donahue that $12 million dollars is too much for the Property Exhibit 1 Copeland told Father
Donahue that LMSD was interested in buying the Property from the Condemnees Id He wanted
to know how interested Villanova was in purchasing the property and how much Villanova would
be willing to pay Id Copeland then told Father Donahue that they valued the Property at $8 million
dollars Id Father Donahue then met with members of his cabinet and trustees who directed him
3
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
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6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
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acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
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COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
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PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
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- ~ ci ~ i IN RE LOWER MERION SCHOOL sect~ DISTRICT CONDEMNATION OF LAND Ii E KNOWN TO BE THE PROPERTY OF JOHN -~
pound g A BENNETT MD AND NANCE DI j ~ ROCCO KNOWN AS A PORTION OF TAX i II) Ill
~ MAP PARCEL NO 40-00-12868-00-7 ~ ~ LOWER MERION TOWNSHIP ~ ~ MONTGOMERY COUNTY ~ j PENNSYLVANIA FOR SCHOOL o ~ PURPOSES ~g ~sect II 0
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sect ~ submit this Brief in Support of Preliminary Objections to the Declaration of Taking The SQgt e ci o~ ~ (I) Preliminary Objections are sectpound 8o ~~ CSA sect 306 (I)
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COUNTY PENNSYLVANIA
EMINENT DOMAIN - IN REM
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fi 1led pursuant to the Pennsylvania Eminent Domain Code 26 Pa
MATTER BEFORE THE COURT
~ - 1 Pleading Before the Court Condemnee s Preliminary Objections to Declaration of li ~~
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a Discovery and an evidentiary hearing
b Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
c The termination of condemnation
d Revesting of title in the name of John Bennett MD and Nance Di Rocco
e The reimbursement of costs and expenses to Condemnee by Condemnor including
reasonable appraisal attorney and engineering fees and other costs and expenses
actually incurred because of the condemnation proceedings 26 Pa CSA sect 306(g)
STATEMENT OF QUESTIONS INVOLVED
Question 1 Whether Lower Merion School District has the power and right to condemn
Condemnees property when the enabling Statute does not grant Condemnor the right to use
eminent domain and when the Condemnors decision to condemn was done in bad faith and was
arbitrary action equating an abuse of discretion
Suggested Answer No
FACTS
Condemnees own property commonly known as 1835 County Line Road Villanova Pa
19085 (tax parcel no 40-00-12868-00- 7) (the Property) The Property consists of approximately
106197 acres of land and contains two buildings The main building is an approximately 20000
sq ft mansion built in 1920 The second building is approximately 3000 sq ft and built in
approximately 2015 The land is situated next to Villanova University Condemnees purchased the
2
Property in 1997 and have resided there ever since Also currently residing at the property is the
Condemnees minor granddaughter MB
During this time Condemnees became close friends with Villanovas President Father
Peter Donahue Condemnees have hosted various University events at their home over the years
During this time Father Donahue conveyed the Universitys interest in purchasing the Property
Condemnees liked the idea of their property going to the University and always felt that someday
when they were ready to sell that they would sell it to the University Sometime around May of
2018 the Condemnees were contacted by real estate agent Stuart Dessner who relayed that the
Lower Merion School District (LMSD) might be interested in buying their property and their
neighbors property Preferring to sell to the University and knowing that Father Donahue always
wanted the University to have the Property Condemnees approached him and asked if the
University would be interested in buying the Property Father Donahue verbally offered $12
million dollars for the Property on behalf of the University and agreed to have the proper
paperwork drawn-up The University intended to maintain the historic buildings utilizing it in a
way that would not involve razing the property
LMSD learned that the University was interested in buying the Property for $12 million
dollars On or about June 27 2019 the Superintendent ofLMSD Rober L Copeland reached out
to Father Donahue and in an attempt to reduce the purchase price of the Property told Father
Donahue that $12 million dollars is too much for the Property Exhibit 1 Copeland told Father
Donahue that LMSD was interested in buying the Property from the Condemnees Id He wanted
to know how interested Villanova was in purchasing the property and how much Villanova would
be willing to pay Id Copeland then told Father Donahue that they valued the Property at $8 million
dollars Id Father Donahue then met with members of his cabinet and trustees who directed him
3
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
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6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
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~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
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acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
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PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
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httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
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- ~ ci ~ i IN RE LOWER MERION SCHOOL sect~ DISTRICT CONDEMNATION OF LAND Ii E KNOWN TO BE THE PROPERTY OF JOHN -~
pound g A BENNETT MD AND NANCE DI j ~ ROCCO KNOWN AS A PORTION OF TAX i II) Ill
~ MAP PARCEL NO 40-00-12868-00-7 ~ ~ LOWER MERION TOWNSHIP ~ ~ MONTGOMERY COUNTY ~ j PENNSYLVANIA FOR SCHOOL o ~ PURPOSES ~g ~sect II 0
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~ middot CONDEMNEES BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS TO ~ ~ DECLARATION OF TAKING O)~ -0 II)
~ 5 Condemnees John Bennett MD and Nance Di Rocco by and through their attorney ~8 ~~ o ic Michael F Faherty Esquire Anthony M Corby Esquire and the Faherty Law Firm hereby ~-g l Ill
sect ~ submit this Brief in Support of Preliminary Objections to the Declaration of Taking The SQgt e ci o~ ~ (I) Preliminary Objections are sectpound 8o ~~ CSA sect 306 (I)
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COUNTY PENNSYLVANIA
EMINENT DOMAIN - IN REM
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fi 1led pursuant to the Pennsylvania Eminent Domain Code 26 Pa
MATTER BEFORE THE COURT
~ - 1 Pleading Before the Court Condemnee s Preliminary Objections to Declaration of li ~~
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a Discovery and an evidentiary hearing
b Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
c The termination of condemnation
d Revesting of title in the name of John Bennett MD and Nance Di Rocco
e The reimbursement of costs and expenses to Condemnee by Condemnor including
reasonable appraisal attorney and engineering fees and other costs and expenses
actually incurred because of the condemnation proceedings 26 Pa CSA sect 306(g)
STATEMENT OF QUESTIONS INVOLVED
Question 1 Whether Lower Merion School District has the power and right to condemn
Condemnees property when the enabling Statute does not grant Condemnor the right to use
eminent domain and when the Condemnors decision to condemn was done in bad faith and was
arbitrary action equating an abuse of discretion
Suggested Answer No
FACTS
Condemnees own property commonly known as 1835 County Line Road Villanova Pa
19085 (tax parcel no 40-00-12868-00- 7) (the Property) The Property consists of approximately
106197 acres of land and contains two buildings The main building is an approximately 20000
sq ft mansion built in 1920 The second building is approximately 3000 sq ft and built in
approximately 2015 The land is situated next to Villanova University Condemnees purchased the
2
Property in 1997 and have resided there ever since Also currently residing at the property is the
Condemnees minor granddaughter MB
During this time Condemnees became close friends with Villanovas President Father
Peter Donahue Condemnees have hosted various University events at their home over the years
During this time Father Donahue conveyed the Universitys interest in purchasing the Property
Condemnees liked the idea of their property going to the University and always felt that someday
when they were ready to sell that they would sell it to the University Sometime around May of
2018 the Condemnees were contacted by real estate agent Stuart Dessner who relayed that the
Lower Merion School District (LMSD) might be interested in buying their property and their
neighbors property Preferring to sell to the University and knowing that Father Donahue always
wanted the University to have the Property Condemnees approached him and asked if the
University would be interested in buying the Property Father Donahue verbally offered $12
million dollars for the Property on behalf of the University and agreed to have the proper
paperwork drawn-up The University intended to maintain the historic buildings utilizing it in a
way that would not involve razing the property
LMSD learned that the University was interested in buying the Property for $12 million
dollars On or about June 27 2019 the Superintendent ofLMSD Rober L Copeland reached out
to Father Donahue and in an attempt to reduce the purchase price of the Property told Father
Donahue that $12 million dollars is too much for the Property Exhibit 1 Copeland told Father
Donahue that LMSD was interested in buying the Property from the Condemnees Id He wanted
to know how interested Villanova was in purchasing the property and how much Villanova would
be willing to pay Id Copeland then told Father Donahue that they valued the Property at $8 million
dollars Id Father Donahue then met with members of his cabinet and trustees who directed him
3
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
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6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
~~
acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
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LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
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PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
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a Discovery and an evidentiary hearing
b Preliminary order revesting title in the Condemnees pending a final determination
of Preliminary Objections
c The termination of condemnation
d Revesting of title in the name of John Bennett MD and Nance Di Rocco
e The reimbursement of costs and expenses to Condemnee by Condemnor including
reasonable appraisal attorney and engineering fees and other costs and expenses
actually incurred because of the condemnation proceedings 26 Pa CSA sect 306(g)
STATEMENT OF QUESTIONS INVOLVED
Question 1 Whether Lower Merion School District has the power and right to condemn
Condemnees property when the enabling Statute does not grant Condemnor the right to use
eminent domain and when the Condemnors decision to condemn was done in bad faith and was
arbitrary action equating an abuse of discretion
Suggested Answer No
FACTS
Condemnees own property commonly known as 1835 County Line Road Villanova Pa
19085 (tax parcel no 40-00-12868-00- 7) (the Property) The Property consists of approximately
106197 acres of land and contains two buildings The main building is an approximately 20000
sq ft mansion built in 1920 The second building is approximately 3000 sq ft and built in
approximately 2015 The land is situated next to Villanova University Condemnees purchased the
2
Property in 1997 and have resided there ever since Also currently residing at the property is the
Condemnees minor granddaughter MB
During this time Condemnees became close friends with Villanovas President Father
Peter Donahue Condemnees have hosted various University events at their home over the years
During this time Father Donahue conveyed the Universitys interest in purchasing the Property
Condemnees liked the idea of their property going to the University and always felt that someday
when they were ready to sell that they would sell it to the University Sometime around May of
2018 the Condemnees were contacted by real estate agent Stuart Dessner who relayed that the
Lower Merion School District (LMSD) might be interested in buying their property and their
neighbors property Preferring to sell to the University and knowing that Father Donahue always
wanted the University to have the Property Condemnees approached him and asked if the
University would be interested in buying the Property Father Donahue verbally offered $12
million dollars for the Property on behalf of the University and agreed to have the proper
paperwork drawn-up The University intended to maintain the historic buildings utilizing it in a
way that would not involve razing the property
LMSD learned that the University was interested in buying the Property for $12 million
dollars On or about June 27 2019 the Superintendent ofLMSD Rober L Copeland reached out
to Father Donahue and in an attempt to reduce the purchase price of the Property told Father
Donahue that $12 million dollars is too much for the Property Exhibit 1 Copeland told Father
Donahue that LMSD was interested in buying the Property from the Condemnees Id He wanted
to know how interested Villanova was in purchasing the property and how much Villanova would
be willing to pay Id Copeland then told Father Donahue that they valued the Property at $8 million
dollars Id Father Donahue then met with members of his cabinet and trustees who directed him
3
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
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6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
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acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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Case 2018-29j~~34 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $qoo The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing corl~fial information and documents differently than non-confidential information and doc~nts
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
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Property in 1997 and have resided there ever since Also currently residing at the property is the
Condemnees minor granddaughter MB
During this time Condemnees became close friends with Villanovas President Father
Peter Donahue Condemnees have hosted various University events at their home over the years
During this time Father Donahue conveyed the Universitys interest in purchasing the Property
Condemnees liked the idea of their property going to the University and always felt that someday
when they were ready to sell that they would sell it to the University Sometime around May of
2018 the Condemnees were contacted by real estate agent Stuart Dessner who relayed that the
Lower Merion School District (LMSD) might be interested in buying their property and their
neighbors property Preferring to sell to the University and knowing that Father Donahue always
wanted the University to have the Property Condemnees approached him and asked if the
University would be interested in buying the Property Father Donahue verbally offered $12
million dollars for the Property on behalf of the University and agreed to have the proper
paperwork drawn-up The University intended to maintain the historic buildings utilizing it in a
way that would not involve razing the property
LMSD learned that the University was interested in buying the Property for $12 million
dollars On or about June 27 2019 the Superintendent ofLMSD Rober L Copeland reached out
to Father Donahue and in an attempt to reduce the purchase price of the Property told Father
Donahue that $12 million dollars is too much for the Property Exhibit 1 Copeland told Father
Donahue that LMSD was interested in buying the Property from the Condemnees Id He wanted
to know how interested Villanova was in purchasing the property and how much Villanova would
be willing to pay Id Copeland then told Father Donahue that they valued the Property at $8 million
dollars Id Father Donahue then met with members of his cabinet and trustees who directed him
3
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
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6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
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acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
~ lll Anthony M Corby Esq C
~ ~ g Bar ID 316852 II
sect 0
75 Cedar Ave ~ Hershey PA 17033 ti 717-256-3000 CI o- mfahertyfahertylawfirmcom 0~ ~ ~ acorbyfahertylawfinnco o - Attorney for Condemnees ~5 ~8 ~~ ofc
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
to get an independent assessment of the value Id Furthermore Father Donahue relayed to
Condemnees that the University was going to delay their offer letter because the University was
not interested in appearing hostile or trying to block the school district especially with all the flair
up over Stoneleigh 1 Id However Father Donahue remained interested pending the assessment of
value See Id On or about October 8 2018 LMSD sent Condemnees an Agreement of Sale with
many unfavorable contingencies
On or about November 7 2018 the University and Condemnees entered into and executed
an agreement of sale with a purchase price of $9650000 Closing was scheduled for January 4
2019 The University completed their due diligence inspections sometime around Thanksgiving
No issues were found Meanwhile LMSD had reached an agreement with the owner of a 56 acre
property on Spring Mill Road that was to be used for athletic fields instead of Condemnees
Property Curiously LMSD continued to express interest in acquiring Condemnees property
(Condemnees did not learn until later that the likely reason for this was that LMSD found wetlands
on the Spring Mill property that were not discovered before LMSD hastily signed the agreement
of sale without performing a suitable investigation That agreement was later terminated on
January 14 2019 after LMSD took Condemnees property) On or about December 18 2018
Condemnee John Bennett Real Estate Agent Stuart Dessner and Superintendent Robert Copeland
held a meeting They discussed the LMSDs agreement to buy the 56-acre Spring Mill Road
1 Stoneleigh is a 42-acre property adjacent to Condemnees property It is owned by Natural Lands Trust a land conservation non-profit organization founded in 1953 and headquartered in Media Pennsylvania This past spring the Lower Merion School Board announced it had targeted the 42-acre Villanova estate as a possible site for a new middle school and sports complex Despite the property being protected by a conservation easement the School Board was prepared to seize it using eminent domain The Districts threat to seize the public garden prompted Natural Lands to launch the SaveStoneleigh awareness campaign In response nearly 40000 people signed an online petition 3000 households displayed Save Stoneleigh signs in their yard and thousands sent messages of concern to the Lower Merion School Board Some 350 residents attended a May School Board meeting wearing crimson Save Stoneleigh t-shirts In late June the Pennsylvania legislature passed House Bill 2468 by wide margins and it was quickly signed it into law The new law requires that entities like school districts and local governments seek court approval before taking property by eminent domain if it is protected by a conservation easement
4
tJ
~ sect (I)
6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
~~
acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System 1of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum~nts -- -
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
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6(1) o C g ~ property which the LMSD already agreed to buy and which would serve their recreational needs 00 0 g ii adequately Copeland expressed the LMSDs desire to landbank Condemnees property A 0 C
~g a 111 landbank is a large body ofland held for future development or disposal Ultimately if LMSD did i E 0 e ~-S
j not need Condemnees Property and the Spring Mill Road property Dessner suggested that LMSD 15 ~ ~ Q g -~ sect could always sell it to Villanova University Copeland acknowledged that LMSD is not in the s e 0
osect ~ ~ business of owning real estate Before ending the meeting Condemnee John Bennett gave sect~ s -~ t Copeland and Dessner a copy of his Purchase Agreement with Villanova University with the ci ejg
~~ understanding that it would remain confidential Condemnee also informed Dessner and Copeland secti ~ liE ~ g that the University would pull-out of their Agreement of Sale if Condemnees were able to reach ltii~ pound C
amp ~ an agreement with LMSD E g Clgt Ill
~ E The next day December 19 2019 Dessner sent Condemnees a revised Purchase ii=~ (I)
~lll 0 ~ Agreement again filled with unfavorable contingencies On December 20 2018 Dessner wrote an ~g ~sect
0 11 e-mail to Condemnee John Bennett asking for permission to send LMSD wetland inspectors to the ~ -Ii t -~ Property on December 24 2019 Christmas Eve Exhibit 2 Unbeknownst to Condemnees on CI 0-0 ~ lto-~ ~ December 21 2018 (three days after Condemnee John Bennett gave Dessner and Copeland 0 I)
~5 ~ 8 confidential copies of the Universitys Agreement of Sale) the School Board convened and passed ~~ ofc ~-g a Resolution to condemn the Property Exhibit 3 Dec of Taking Exh A In a press release l Ill g ~ ~ published that same day December 21 2018 the School Board explained its illegal intention as e ci Q~ ~(I)
sect pound an attempt to thwart the purchase of the Property by Villanova University and to maintain the tax 8o ~~ ~ 8 base Exhibit 4 In the press release the District said the condemnation will keep the property in ~~ C (I)
~ _u l3 use for the residents of Lower Merion Township and Narbeth rather than enabling Villanova
~- j ~ University to take the property off the tax rolls for its private development use Id LMSD 0~
8~ - if explained further that although the sellers had indicated the District offers were basically ~o g E ~Jg ClO Igt s ~~ 5 =It - Bl -a
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acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
acceptable with minor revisions the agreements of sale were never returned to the District Id
President of the Lower Merion Board of School Directors Dr Melissa Gilbert said Im confident
our residents would rather see the land being used by their neighbors than by college students who
dont live in Lower Merion or Narberth Id The press release also stated that the Property would
not actually be needed until construction began in 2023 Id School Board Solicitor Kenneth Roos
at the December 21 2018 School Board Meeting stated We just found out about these agreements
of sale Its necessary that we do this Its necessary that we did this with dispatch in order to make
sure the declarations were filed prior to the closing of the properties with Villanova
LMSD had no definite plans formulated as to the use to be made of the condemned
property no specifications as to the proposed building have yet been indicated nor has any
definitive location of the tract been designated for the intended structures and no estimate of
construction is yet available Furthermore the Resolution was passed seemingly without any of
the following a wetlands study a final land development plan a final architectural plan a final
engineering plan zoning approval a needs assessment nor any other suitable investigation leading
to an intelligent informed judgment by the Condemnor Further proof of this is evidenced by the
fact that on January 17 2019 at a town hall the Condemnor shared with the community a very
rough preliminary sketch of the future use of Condemnees property Exhibit 5 (note this is after
the Property was condemned on December 21 2018) The Resolution authorized the payment of
$9950000 and a lease permitting Condemnees to reside on and occupy the Property until May
2023 (ie approx 5 years) Exhibit 3 This is possible because the new middle school is not
scheduled to open until 2022 and construction on Condemnees property is not expected to begin
until 2023 according to Condemnors press release Exhibit 4 That same day Villanovas Counsel
informed Condemnees that LMSD had passed the condemnation Resolution and suggested the
6
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
agreement of sale be terminated or that closing be pushed back to January 21 2019 to allow the
school district more time to reach an amicable agreement with Condemnees
On December 21 2018 LMSD also formally took title to Condemnees Property by filing
a Declaration of Taking in the Montgomery County Court of Common Pleas Unbeknownst to
Condemnees they lost their property virtually overnight A property in which Condemnees have
resided for 21 years The same place they raised their children and grandchildren celebrated
holidays mourned the loss of loved ones and made countless memories The Declaration of
Taking stated vaguely that the Property was taken for school district purposes as provide for by
the resolution specifically for the purpose of utilizing said land in conjunction with the
construction of school buildings related facilities and necessary improvements On December
24 the School District sent an inspector to the Property to do a wetlands study Condemnees did
not receive formal notice of condemnation until January 9 2019 even though LMSD sent wetlands
inspectors to the Property on December 24th under the false pretense of continuing to negotiate a
purchase price On January 2 2019 Villanova University formally terminated its agreement of sale
with Condemnees Exhibit 6
Despite Condemnors deception and Villanovas termination of the sales agreement
Condemnees continued to engage LMSD in negotiations Condemnees later learned the reason for
Condemnors deceit Condemnees present counsel informed them that the Public School Code
denies school districts the right to take by condemnation land belonging to any incorporated
institution of learning such as Villanova University 24 PS sect 7-721 Therefore if Villanova
University had closed on the deal on January 4 2019 as planned LMSD would not have been able
to condemn the Property from Villanova University Thus LMSD abused its eminent domain
authority by taking advantage of Condemnee John Bennetts confidential disclosure of his
7
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System 1of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum~nts -- -
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
Purchase Agreement with Villanova that he disclosed in good faith Condemnee John Bennett
mistakenly believed LMSD was engaging in good faith negotiations
On January 7 2019 Condemnees prior attorney Josh Cohen spoke with LMSD attorney
Daniel Mita to discuss the case Attorney Mita emphasized to Cohen that if Condemnees did not
agree to LMSDs Purchase Agreement than Condemnees would be left without a lease which
meant they would have to move presumably out of the school district Attorney Mita emphasized
that if that happened the Condemnees granddaughter MB who resides with them would not be
able to attend LMSD Regardless of whether Attorney Mita meant this to be a threat or said it out
of a true concern for the Condemnees wellbeing it nevertheless highlights the hardship eminent
domain places upon individuals and their families and underscores why the abuse of such an
awesome power should not be tolerated by this Court
Note that LMSD also purchased an approximately 302-acre property adjacent to
Condemnees property located at 1800 West Montgomery Avenue Lower Merion Township
Montgomery County Pennsylvania and similarly approved a 5 year lease permitting the owner to
reside on and occupy the 1800 West Montgomery A venue property until May 2023 Exhibit 3
Also of note is that LMSD terminated the ill-informed Agreement of Sale for the Spring
Mill property on January 14 2019 Exhibit 7 Furthermore the arbitrariness in which LMSD
selects properties for condemnation is highlighted by the fact that LMSD also failed to properly
condemn Stoneleigh and St Charles Barromeo Seminary LMSDs latest attempt to condemn
Condemnees property is just another unreasoned and arbitrary attempt at condemnation Similar
to those failed condemnation attempts LMSD in the instant case has failed to conduct a suitable
investigation leading to an intelligent informed judgment
8
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
ARGUMENT
The power of eminent domain is the power to take property for a public use without the
consent of the owner of the property interest Eminent domain is not conferred by the constitution
It is a right inherent in the state as sovereign and is limited by the constitution In re Condemnation
of 110 Washington Street 767 A2d 1154 (Pa Commw Ct 2001) aygtpealdenied 788 A2d 379
( emphasis added) The Pennsylvania Constitution provides nor shall private property be taken
or applied to public use without authority of law and without just compensation being first made
or secured Pa Const art I sect 10 The United States Constitution provides nor shall private
property be taken for public use without just compensation US Const Amendment V The
Fifth Amendments prohibition against the taking of private property for public use without just
compensation applies against the States through the Fourteenth Amendment Texaco Inc v Short
454 US 516 523 n 11 (1982) Webbs Fabulous Pharmacies Inc v Beckwith 449 US 155
160 ( 1908) As Justice Musmanno stated in Winger v Aires 89 A2d 521 (Pa 1952) the power
of eminent domain next to that of conscription of manpower for war is the most awesome grant
of power under the law of the land
Preliminary Objections are limited to the following (26 Pa CS sect 306(a))
1) The power or right of the condemnor to appropriate the condemned property unless it
has been previously adjudicated
2) The sufficiency of the security
3) The declaration of taking
4) Any other procedure followed by the condemnor
9
I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
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I Power or Right to Condemn - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion and because it violates the Public School Codes condemnation enabling statute
a The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Code because the Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion
Judicial review of the exercise of the power of eminent domain is limited in nature and is
governed by judicial respect for the doctrine of separation of powers of government Weber v City
of Philadelphia 262 A2d 297 299 (Pa 1970) There has been a longstanding policy of deference
to the legislative decision Keio v City ofNew London Conn 545 US 469480 488-89 (2005)
As a result a legal presumption has arisen that legislative bodies exercise the power in the public
interest and that their decisions have been reached properly Winger v Aires 89 A2d 521 523
(Pa 1952)
However this presumption is tempered and may be overcome when the discretion of
government violates due process See Price v Philadel12hia Parking Authority 221 A2d 138 (Pa
1966) Winger v Aires 89 A2d 521 521 (Pa 1952) The 5th Amendment of the United States
Constitutions prohibition against the taking of private property for public use without just
compensation applies against the States through the 14th Amendment which also prohibits states
from depriving any person oflife liberty or property without due process oflaw Texaco Inc v
Short 454 US 516 523 n 11 (1982) Webbs FabulousmiddotPharmacies Inc v Beckwith 449 US
155 160 (1908) Therefore the courts have permitted the presumptiondefference to be overcome
only where the record shows an abuse of discretion fraud or bad faith Pidstawski v S Whitehall
10
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
~ 380 A2d 1322 1324 (Pa 1977) (citing Truitt v Borough of Ambridge Water Auth 133
A2d 797 (Pa 1957)) This rule has been synthesized from the decisions of various Federal Courts
that addressed issues of governmental discretion and when such discretion may be limited by the
courts taking into account Constitutional demands such as due process and separation of powers
See Eg_ United States v Meyer 113 F 2d 3 87 392 (7th Cir 1940)
The need for judicial scrutiny cannot be overstated As the Pennsylvania Supreme Court
has opined
[There must be] a recognition of the need to subject the activities of public authorities to judicial scrutiny As public bodies they exercise public powers and must act strictly within their legislative mandates Moreover they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment
Price v PhiladelphiaParking Authority 221 A2d 13 8 (Pa 1966) The Court similarly opined that
The [ condemnees] do not question and indeed cannot question that the School Board has the power by this statute and under the Constitution of the Commonwealth itself to take private property for school building purposes They do however challenge the extent of that power and properly so There is no authority under our form of government that is unlimited The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders commands or directives are not subject to review The power of eminent domain next to that of conscription of man power for war is the most awesome grant of power under the law of the land
Winger v Aires 371 Pa 242 244 89 A2d 521 522 (1952) Out of these bedrock principles
Courts of this Commonwealth have struck a balance between the separation of powers doctrine
and the due process clause This balance was best summarized by the Pennsylvania Supreme Court
in Weber The Court explained
First it is to be presumed that municipal officers properly act for the public good Second courts will not sit in review of municipal actions involving discretion in the absence of proof of fraud collusion bad faith or arbitrary action equating to an abuse of discretion Third on judicial review courts absent
11
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System 1of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum~nts -- -
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
proof of fraud collusion bad faith or abuse of power do not inquire into the Wisdom of municipal actions and Judicial discretion should not be substituted for Administrative
Weber v City of Philadelphia 262 A2d 297 299 (1970) (internal citations omitted)(emphasis
added)
The United States Supreme Court defined arbitrary by stating
Arbitrary is defined by Funk amp Wagnalls New Standard Dictionary of the English Language (1944 ) as 1 without adequate determining principle and by Websters New International Dictionary 2d Ed (1945) as 2 Fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles circumstances or significance decisive but unreasoned
US v Carmack 329 US 230243 n 14 (1946)
Regarding a condemnors decision to exercise eminent domain power the courts have
recognized certain minimum standards
i Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because Condemnees property is not needed for a future use within a reasonable time
Land may be condemned for future expansion even if it cannot presently be used for the
purposes stated in the declaration of taking as long as the land will in good faith be necessary for
future use within a reasonable time Pidstawski v S Whitehall Twp 380 A2d 1322 1324 (Pa
Commw Ct 1977) In Octorara Area School District 556 A2d 527 (Pa Commw Ct 1989) a
school board condemned an entire 102-acre farm property for school buildings projected to be
needed over the following five to twelve years even though only 30 acres were currently needed
for a new elementary school and athletic fields Id at 528 The School Boards decision was based
on (1) a severe shortage in athletic facilities (Id at 528) (2) keeping its schools on one campus
and (3) the school enrollment projections of the Superintendent based on the sudden submission
12
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
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PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
of subdivision plans for residential development within the District Id at 529 Additionally the
Court noted that the purpose of the condemnation was described in the declaration of taking as
being to acquire land for future expansion of educational facilities including athletic fields and
probable construction of new schools Id at 528 The Court held that the condemnation was
beyond the eminent domain power vested in the Board by the Public School Code and constitutes
an abuse of discretion Id at 531 The Court reasoned that it was clear from the record in the case
that the only immediate need of [Condemnor] for land for proper school purposes was for athletic
facilities The maximum amount felt necessary for this purpose was 15 acres The bulk of the land
condemned by the Board as indicated in its declaration of taking was for the purpose ofprobable
construction of new schools This is clearly a future necessity and is permissible only if the need
for the land will become necessary within a reasonable time Id at 529 In concluding that the
school district did not have a necessity for the condemned land within a reasonable time the Court
said it was guided by the words of the Pennsylvania Supreme Court The exercise of the right
of eminent domain whether directly by the state or its authorized grantee is necessarily in
derogation of private right and the rule in that case is that the authority is to be strictly construed
Id at 530-31 (citing Winger 89 A2d at 521) The Court reasoned further
Clearly a school district must engage in long range projections as were done here to prepare for future needs The purchase of land for such projected needs to avoid higher costs in the future and to be sure there is sufficient land is proper and commendable The necessity for purposes of supporting a condemnation though requires more to support it than emollment projections based on possible housing development Condemnation of an entire working farm for school buildings projected to be needed over the next 5 to 12 years where the probable need is based on assumptions and possibilities that have been challenged by contrary evidence is beyond the eminent domain power vested in the Board by the Public School Code and constitutes an abuse of discretion
Id at 531
13
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
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75 Cedar Ave ~ Hershey PA 17033 ti 717-256-3000 CI o- mfahertyfahertylawfirmcom 0~ ~ ~ acorbyfahertylawfinnco o - Attorney for Condemnees ~5 ~8 ~~ ofc
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
Here like in Octorara Condemnees property will not become necessary within a
reasonable time The Condemnor cannot deny this as their own School Board Resolution directs
the Superintendent to lease the Property back to Condemnees until May 2023 (ie approx 5
years) Similar to how the Court in Octorara felt that a use 5 years in the future was not reasonable
so too is 5 years not reasonable in the instant case Therefore like in Octorara the condemnation
of Condemnees entire estate for school fields and buildings projected to be needed over the next 5
years where the probable need is based on assumptions and possibilities that have not been proven
by the evidence is beyond the eminent domain power vested in the Condemnor by the Public
School Code and constitutes an abuse of discretion If in 5 years the need for Condemnees
property is apparent than the Condemnor can condemn at that time
ii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because the Condemnor failed to do a suitable investigation leading to an intelligent informed judgment
Unless the property is acquired after a suitable investigation leading to an intelligent
informed judgment by the condemnor the condemnation is invalid In re Sebo Dist Of Pittsburg
244 A2d 42 46 (Pa 1968) (citing Winger v~ Aires 89 A2d 521 (Pa 1952)
In Wingerv Aires 89 A2d 521521 (Pa 1952) the Court held that the condemnation was
invalid because the condemnor s investigation was insufficient and the condemnor condemned
more property than it needed The Court examined the investigation conducted by condemnor It
found that [t]he darkness in which the [condemnor] moved in this most serious business of
condemnation rendered the condemnation invalid Id In Winger [no] definite plans had been
formulated as [to] the use to be made of the [condemned property] no specifications as to the
14
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System 1of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum~nts -- -
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
proposed building had yet been indicated [n]or had any definitive location of the tract been
designated for the intended structure Id In addition although the project was funded no
estimate of construction was yet available Id
Similar to Winger LMSD has no definite plans formulated as to the use to be made of the
condemned property no specifications as to the proposed building have yet been indicated nor
has any definitive location of the tract been designated for the intended structures and no estimate
of construction is yet available Furthermore prior to condemning the Condemnor failed to do a
wetlands study a final development plan a final architectural plan a final engineering plan obtain
proper zoning approval perform a thorough needs assessment or any other due diligence measures
or site-specific land-use calculations The Condemnor hastily condemned the property in an
arbitrary manner to thwart the purchase of the property by Villanova Also of note is that
Condemnor terminated the Agreement of Sale for the Spring Hill property on January 14 2019
further evidencing the lack of suitable investigation leading to an intelligent informed judgment
by the Condemnor as it related to the purchase of that property If the Spring Hill property was
placed under contract without suitable investigation than it stands to reason that the Condemnor
likewise failed to do a suitable investigation of Condemnees property Further evidence of this is
LMSDs failed condemnation of St Charles Borromeo Seminary Condemnor only has a very
rough preliminary sketch of the anticipated future use of Condemnees property and it was not
announced until the town hall meeting on January 17 2019 after they condemned Exhibit 5 It is
unreasonable to condemn property before having a well thought out plan for that property It is
obvious that Condemnor is arbitrarily making offers on multiple properties without discriminating
as to size or quality The law requires a more reasoned investigation tailored to the districts needs
which the Condemnor failed to do The size of the property must bare some relation to need What
15
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
if the school districts plans for Condemnees property never materialize like the Spring Mill Road
property This possibility underscores the arbitrariness of the school boards decision because
although decisive it is unreasoned
iii Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action equating to an abuse of discretion because The taking was excessiveunnecessary
Condemnor may not appropriate a greater amount of property than is reasonably required
for contemplated purpose Appeal of Waite 641 A2d 25 (Pa Commw Ct 1994) A condemnation
may be overturned if it is found to be excessive Estate of Rochez by Goslin 558 A2d 605 (Pa
Commw Ct 1989) amended on reconsidetation 566 A2d 631 (Pa Commw Ct 1989) In Estate
of Rochez PennDOT condemned a fee simple interest in fifty percent of a property for the
construction of a limited access highway While PennDOT needed only a portion of the
condemnees building for its roadway it condemned the entire building so that the area could be
used as a staging area or construction facility for its contractors thereby lessening the cost of
construction The Court held that Department of Transportation abused its discretion and
condemnation of fee simple was excessive where only 20 feet of the property taken was necessary
for public use and the interest in the remaining property needed during construction was in the
nature of a temporary easement rather than a fee absolute Id at 608 The Court reasoned that (1)
once construction was completed there would be no need for the storage area (2) the only interest
PennDOT needed was in the nature of a temporary easement (3) the taking of a fee simple interest
was excessive and (4) upon completion of construction the land reverted to ownership by the
condemnee
16
Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
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Here the LMSD first attempted to purchase a 56 acre property on Spring Mill Road to
satisfy its need for athletic fields LMSD signed an agreement of sale to buy the Spring Mill Road
property This agreement of sale was signed prior to the date Condemnor condemned
Condemnees property Therefore as of the date of taking the Condemnor was under contract to
purchase the 56-acre Spring Mill Road property making this Declaration of Taking unnecessary
Furthermore the Property owned by Condemnees totals 106197 acres which is approximately 5
acres more than was necessary because if 5 6 acres was necessary before the taking then 10 6197
acres is unnecessary after the taking The Spring Mill Road property was allegedly purchased for
the same purposes alleged here use as fields The Spring Mill Road deal fell-through and was
terminated on January 14 2019 after LMSD condemned the Condemnees property Why is
LMSD going around buying properties of varying sizes and varying quality Furthermore LMSD
also purchased an approximately 302-acre property adjacent to Condemnees property adding
even more unnecessary land to the originally needed 56 acres from Spring Mill This means before
the Spring Mill propertys agreement was terminated the Condemnor held approximately 182
acres when only 56 acres was needed Therefore Condemnor has condemned more property than
is reasonably required evidencing not only the excessiveness of the taking but also the arbitrary
nature of it
b Enabling Statute - The condemnation of Condemnees property is beyond the eminent domain power vested in the Condemnor by the Public School Codes enabling statute because Condemnor and Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the condemnation was not for a school purpose
Preliminary objections to the condemnors power and right to condemn are limited to
challenging the condemning authoritys grant of power from the legislature through appropriate
17
enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System 1of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum~nts -- -
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
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COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
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PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
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httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
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enabling statutes In re Condemnation of Real Estate by the Bor Of Ashland (Arueal of
Kenenitz) 851 A2d 992 996 (Pa Cornrow Ct 2004) The power of eminent domain over
property arises only when legislative action sets forth the occasions modes and agencies for its
exercise The legislature may delegate the right to exercise eminent domain power but the body
to which the power is entrusted has no authority beyond that which is legislatively granted Marple
Tp V Marple Newtown Sch Dist 856 A2d 225 (Pa Cornrow Ct 2004)
The power of eminent domain is limited to that which has been expressly stated Bear
Creek Tp V Riebel 37 A3d 64 (Pa Cornrow Ct 2012) The exercise of the right of eminent
domain whether directly by the state or its authorized grantee is necessarily in derogation of
private right and the rule in that case is that the authority is to be strictly construed What is not
granted is not to be exercised Winger v Aires 371 Pa 242 247 89 A2d 521 523 (1952)
(internal citations omitted)( emphasis added)
The School Code states as follows
Whenever the board of school directors of any district cannot agree on the terms of its purchase with the owner or owners of any real estate that the board has selected for school purposes such board of school directors after having decided upon the amount and location thereof may enter upon take possession of and occupy such land as it may have selected for school purposes whether vacant or occupied and designate and mark the boundary lines thereof and thereafter may use the same for school purposes according to the provisions of this act Provided That no board of school directors shall take by condemnation any burial ground or any land belonging to any incorporated institution of learning incorporated hospital association or unincorporated church incorporated or unincorporated religious association which land is actually used or held for the purpose for which such burial ground institution ofleaming hospital association church or religious association was established
24 PS sect 7-721 (emphasis added)
i Condemnee and Condemnor did not disagree on the terms of purchase because they were still engaged in negotiations
18
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System 1of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum~nts -- -
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
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httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
School directors cannot pass resolutions effecting condemnation until there has been a
failure to agree to terms of purchase with owner of realty selected for school purposes Jury v
Wiest 193 A 5 7 (Pa 1937) Spann v Joint Boards of School Directors of Darlington Tp
Darlington Borough and South Beaver Tp 113 A2d 281 (Pa 1955) (This section requires
evidence that parties cannot agree)
Here Condemnor and Condemnee were engaged in active negotiations up to and even after
the Property was taken In fact Condemnees were not even aware that they no longer owned the
property after December 21 2018 as they continued negotiating with Condemnor and Condemn or
continued negotiating with them Condemnees even permitted Condemnors wetland inspectors to
access the Property on December 24 2018 Furthermore Condemnee John Bennet told
Superintendent Copeland that the University would pull-out of their Purchase Agreement if
Condemnees reached an agreement with LMSD In fact LMSDs own press release stated that the
District offers [to Condemnees] were basically accepted with minor revisions Here the only
reason the school district condemned is because they feared that the University would close on
their deal before the school district foreclosing the possibility of condemning from Villanova due
to the restriction on condemning learning institutions found in the Public School Code cited above
The condemnation was an attempt to remove the Property from the market place in hopes of
avoiding a bidding war constituting an abuse of power and bad faith Therefore the School
directors were forbidden from passing their Resolution effecting condemnation because the
parties did not fail to agree on terms of purchase
ii The condemnation was not for school purposes because the true purpose of the condemnation was to thwart the sale to Villanova maintain the tax base and landbank the Property
19
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
The legislature has provided school district boards of directors with power to acquire by
condemnation real estate it may deem necessary to furnish school buildings or other suitable sites
for proper school purposes 24 PS sect 7-703 However our State Supreme Court has directed
that a taking may be examined for its true purpose and not just the purpose as stated in the
declaration of taking Middletown Tp V Lands of Stone 939 A2d 331 (Pa 2007) In Middletown
a township of the second class condemned property allegedly for recreational space In holding
that the taking should be examined for its true purpose the Court reasoned that although the
township had the right to condemn for recreational space the record showed that the actual purpose
was not for recreational space Rather it was condemned for open space which was not permitted
Here the true purpose of the LMSDs taking is to prevent Villanova from buying it and
prevent the erosion of the tax base as stated blatantly in the LMSDs press release dated December
21 2018 Furthermore Superintendent Copeland told Condemnee John Bennett that their intention
was to land bank the Property and Dessner suggested that if the land is ultimately not needed they
can always sell it to Villanova Therefore because the true purpose of the condemnation was
to thwart the sale to Villanova prevent the erosion of the tax base and landbank the
Property the enabling statute does not give LMSD the right to condemn
CONCLUSION
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor because the Condemnors decision to condemn was the result of fraud
collusion bad faith or arbitrary action equating an abuse of discretion and because it violates the
Public School Codes condemnation enabling statute
20
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
The condemnation of Condemnees property is beyond the eminent domain power vested
in the Condemnor by the Public School Code because the Condemnors decision to condemn was
the result of fraud collusion bad faith or arbitrary constituting an abuse of discretion
Condemnors decision to condemn was the result of fraud collusion bad faith or arbitrary action
equating to an abuse of discretion because Condemnees property is not needed for a future use
within a reasonable time because the Condemnor failed to do a suitable investigation leading to
an intelligent informed judgment and because the taking was excessiveunnecessary
Condemnees property is not needed for a future use within a reasonable time because
Condemnor is leasing the property back to Condemnee for 5 years and is based on assumptions
and possibilities that have not been proven by the evidence The Condemnor failed to do a suitable
investigation leading to an intelligent informed judgment by the condemnor because LMSD has
no definite plans formulated as to the use to be made of the condemned property no specifications
as to the proposed building have yet been indicated nor has any definitive location of the tract
been designated for the intended structure no estimate of construction is yet available no wetlands
study has been completed nor a final development plan a final architectural plan a final
engineering plan proper zoning approval a thorough needs assessment or any other due diligence
measures The taking is excessiveunnecessary because the Condemnor only possibly needed 56
acres for athletic fields As of the date of taking the Condemnor had a contract for purchase of the
56 acres making this Declaration of Taking unnecessary
The condemnation of Condemnees property is beyond the eminent domain power vested
m the Condemnor by the Public School Codes enabling statute because Condemnor and
Condemnee were still negotiating when LMSD passed the Resolution to condemn and because the
condemnation was not for a school purpose Condemnee and Condemnor did not disagree on the
21
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
terms of purchase because they were still engaged in negotiations The condemnation was not for
school purposes because the true purpose of the condemnation was to thwart the sale to Villanova
maintain the tax base and landbank the Property
Respectfully submitted
FAHERTY LAW FIRM
sf Michael F Fahertv Michael F Faherty Esquire Atty Id 55860 mfahertyfahertylawfirmcom Anthony M Corby Esquire Atty Id 316852 acorbyfahertylawfirmcom 75 Cedar A venue Hershey Pennsylvania 17033 Telephone (717)256-3000
Dated February 7 2019 Counsel for Condemnees
22
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System 1of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum~nts -- -
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System 1of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum~nts -- -
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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I certify that this filing complies with the provisions of the Public Access Policy of the
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require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
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Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
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Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systerrf_ennsylvania Case Records of the Appellate and Trial Courts that require filing confi~ntial information and documents differently than non-confidential information and doc~mfnts
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
-- _
~ l_-1J
gtlt ~ ~ ~
to ~ ~
~ ~
212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
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Case 2018-29j~~34 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $qoo The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing corl~fial information and documents differently than non-confidential information and doc~nts
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
i 1 = _ ~ ~ -middot ~ 1 C) t l ~
I
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
~ lll Anthony M Corby Esq C
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75 Cedar Ave ~ Hershey PA 17033 ti 717-256-3000 CI o- mfahertyfahertylawfirmcom 0~ ~ ~ acorbyfahertylawfinnco o - Attorney for Condemnees ~5 ~8 ~~ ofc
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
Case 2018-29723-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confi~ntial information and documents differently than non-confidential information and doc~nts
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John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
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Case 2018-29j~~34 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $qoo The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing corl~fial information and documents differently than non-confidential information and doc~nts
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
i 1 = _ ~ ~ -middot ~ 1 C) t l ~
I
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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--Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
~ lll Anthony M Corby Esq C
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75 Cedar Ave ~ Hershey PA 17033 ti 717-256-3000 CI o- mfahertyfahertylawfirmcom 0~ ~ ~ acorbyfahertylawfinnco o - Attorney for Condemnees ~5 ~8 ~~ ofc
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
John A Bennett Thursday December 20 2018 11 06 AM
To Stuart Dessner Subject Re 1835 Monday morning
On Dec 20 2018 at 11 04 AM Stuart Dessner ltsdu)primemainlinecomgt wrote
Hi the School Districts wetland inspector (see below) will be at your place Monday morning at 9AM Please have gate open or opened for Scott Thanks
Stuart Dessner President
Prime Realty Group inc 822 Montgomery Avenue Suite 303 Narberth PA 19072
P- 610-668-1733 ext 103 C- 6103087300
This email message and any attachments to it contain information from Prime Realty Group inc which is confidential and privileged Some information may have been obtained from sources considered to be reliable but Prime Realty Group inc makes no representations and warranties expressed or implied as to the accuracy of the information Subject to errors omissions or withdrawal without notice The information is intended for the use of the addressee(s) If you are not the intended recipient be aware that any disclosure copying distribution or use of the contents of this information is prohibited If you have received this email message in error please notify us by return email or telephone immediately and destroy all copies of this message and any attachments
Stuart
I plan to arrive at 0900 on Monday the 24th at the gate off County Line Thank you
Scott Bush PWS GHD Services Inc
1
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
tT1 gtlt ~ ~ ~
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
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212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
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Case 2018-29j~~34 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $qoo The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing corl~fial information and documents differently than non-confidential information and doc~nts
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
i 1 = _ ~ ~ -middot ~ 1 C) t l ~
I
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
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CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
-- _
~ l_-1J
gtlt ~ ~ ~
to ~ ~
~ ~
212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
rd middotgtlt =o ~ ~
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Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System o_ennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
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------
Case 2018-29j~~34 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $qoo The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing corl~fial information and documents differently than non-confidential information and doc~nts
-
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
i 1 = _ ~ ~ -middot ~ 1 C) t l ~
I
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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--Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
~ lll Anthony M Corby Esq C
~ ~ g Bar ID 316852 II
sect 0
75 Cedar Ave ~ Hershey PA 17033 ti 717-256-3000 CI o- mfahertyfahertylawfirmcom 0~ ~ ~ acorbyfahertylawfinnco o - Attorney for Condemnees ~5 ~8 ~~ ofc
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~~
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
Resolution Adopted by the Board of Directors of
the Lower Merion Schoo] District At a Meeting Jield on December ll 2018
WHEREAS the Board of Directors (the Board) of Lower Merion School District a public school district organized and existing under the laws of the Commonwealth of Pennsylvania whose address is 301 E Montgomery Avenue Ardmore PA 19003-3399 (herein refel1ed to as the District) desires to acquire certain real properties with Lower Merion Township for the purpose of utilizing said land in co1tjunction with the construction of school buildings related facilities and necessary improvements and
WHEREAS the District is duly authorized to exercise the power of eminent domain by Section721 of the Public School Code of 1949 Act 1949-14 PL 30 sect 721 approved Mar 10 1949 eff Sept 1 1949 as amended 24 PS sect 7-721 and
WHEREAS the Board authorizes the acquisition of the property (the 1835 Property) which is owned by John A Bennett MD and Nance Dirocco (the 1835 Owner) which property is known as 1835 County Line Road Lower Merion Township Montgomery County Pennsylvania 19085 being Montgomery County Tax Identification No 40-00-12868-007 including by without limitation through the Districts power of emimmt domain and the filing of a declaration of taldng and
WHEREAS the Board of School Directors aut1iorizes the superintendent of the District (the Superintendent) to enter into an agreement in connection with the acquisition of the 1835 Property including the payment of an amount not to exceed $9950000 and as additional consideration a lease permitting the 1835 Owner to reside on and occupy the 1835 Property until May2023 and
WHEREAS the Board authorizes the acquisition of the property (the 1800 Property) _ which is owned by Acorn Cottage LLC a Pennsylvania limited liability company (the 1800
Property) which property is known as 1800 West Montgomery Avenue Lower Merion Township Montgomery County Pennsylvania being Montgomery County Tax Identification No 40-00-12872-00-3 including by without limitation through the Districts power of eminent domain and the filing of a declaration of taking and
WHEREAS the Board of School Direct01middots authorizes the Superintendent to enter into an agreement in connection with the acquisition of the 1800 Property including the payment of an amount not to exceed $2965000 and as additional consideration a lease pe1mitting the 1800 Owner to reside on and occupy on the 1800 Prope1ty until May 2023 and
WHEREAS certain documents must be delivered executed and filed by the District and certain actions are required to be taken by the District as a prerequisite of the aforementioned acquisitions respectively and
WHEREAS the District fu1ther desires to authDlize the Superintendent its Solicitor and such others permitted persons whom it may properly designate in writing (collectively the
(017694[8 )DM21~526GI0I
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
-- _
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~ ~
212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
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Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System o_ennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
ittli
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Case 2018-29j~~34 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $qoo The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing corl~fial information and documents differently than non-confidential information and doc~nts
-
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
i 1 = _ ~ ~ -middot ~ 1 C) t l ~
I
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
middotmiddot- ~middot
tr] ~ ~ ~ ~
to ~ ~
~ -----J
--Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
-~ -i---~ t~~ ii ~~~Q middotc--~i ~o~~ c ~ cP~o l l a ~l
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r-_ Q
imiddotmiddot (I)
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~ sect (I)
6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
~ lll Anthony M Corby Esq C
~ ~ g Bar ID 316852 II
sect 0
75 Cedar Ave ~ Hershey PA 17033 ti 717-256-3000 CI o- mfahertyfahertylawfirmcom 0~ ~ ~ acorbyfahertylawfinnco o - Attorney for Condemnees ~5 ~8 ~~ ofc
~-g l Ill g OJ S igt e ci Q~ ~(I)
sect S 8o ~~ (I)
e8 ~~ C (I)
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~- i ~~ 0~
8~ ff ~o g E ~Jg ClO Igt ~~ 23 =It - Bl -a
~~
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
Authorized Officers) to talce all actions required or necessary to effect and consummate the aforementioned transactions actions and acquisitions it is
NOW THEREFORE BE IT RESOLVED THAT
RESOLVED that in accordance with the provisions hereof the District hereby aclmowledges and approves the taldng of all action and the execution delivery and filing in connection with the aforementioned transactions actions and acquisitions and any and all agreements documents and instruments that are necessary proper or desirable in connection
~- therewith (the Documents) and
FURTHER RESOLVED that the Authorized Officers of the District are each hereby authorized and directed in the name and on behalf of the District to negotiate the terms and conditions and to execute deliver and file or cause the execution delivery or filing the Documents and the execution and delivery by any of the Authorized Officers of the District of the Docume11ts is hereby authorized and approved and the execution and delivery thereof shall constitute conclusive evidence of such approval and the Secretary or Assistant Secretary of the District is hereby auth01middotized to seal and attest such Documents as necessary and
FURTHER RESOLVED that each Authorized Officer is authorized and directed to proceed promptly with the undertakings herein contemplated and such officers are authorized empowered and directed to do any and all acts and things and to execute and deliver any and all documents agreements instruments or certificates as may be necessary proper or desirable to effect and consummate the transactions contemplated by these resolutions including but not limited to the execution and delivery of such documents instruments ce1tificates agreements financing statements letters etc as may be reasonably andor requested by Counsel in connection with the aforementioned transactions actions and acquisitions and the exercise of the power of eminent domain contemplated by these resolutions and
FURTHER RESOLVED that these resolutions shall become effective immediately and in the event any provision section sentence clause or part of these resolutions shall be held to L
i be invalid such invalidity shall not affect or impair any remaining provision section sentence clause or part of these resolutions it being the intent of the District that such remainder shall be and shall remain in full force and effect and
FURTHER RESOLVED that the plOper officers of the District are hereby authorized andbull directed to take all such actions and to execute and deliver all instnunents and documents as they shall deem necessary or appropriate in order to implement the foregoing resolutions
I Denise LaPera1 ce1tify that this is a true and comct copy of the Resolution passed by the ~ower Merion School District Board of Sch9ol ~ at its duly advertised Special Meetmg on December 21 2018 ~ ~ df JJitJ
Denise LaPe1middota Secretary Lowel Merion School Board
[01769418 2 DM29526610J
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
-- _
~ l_-1J
gtlt ~ ~ ~
to ~ ~
~ ~
212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
rd middotgtlt =o ~ ~
tc ~ f
~ Ul
-
0 0 CD C C) i - I l) -middot i I cc (C
pound -I == _7
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System o_ennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
ittli
t J
~jl] i~ ~J-
middotIJ ~~ I -_ middot1 11 ~
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bull - jj -middot~ _1~ l
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l) en en ~ -00~ middot~--a en - middotO Omiddot~ -amiddotc Omiddot (I) (1) middotmiddoto a cnr -i(Q ~~o a b (1)
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------
Case 2018-29j~~34 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $qoo The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing corl~fial information and documents differently than non-confidential information and doc~nts
-
tI1 gtlt ~ ~ ~ cc ~ ~
~ ~
By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
i 1 = _ ~ ~ -middot ~ 1 C) t l ~
I
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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--Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
~ lll Anthony M Corby Esq C
~ ~ g Bar ID 316852 II
sect 0
75 Cedar Ave ~ Hershey PA 17033 ti 717-256-3000 CI o- mfahertyfahertylawfirmcom 0~ ~ ~ acorbyfahertylawfinnco o - Attorney for Condemnees ~5 ~8 ~~ ofc
~-g l Ill g OJ S igt e ci Q~ ~(I)
sect S 8o ~~ (I)
e8 ~~ C (I)
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~- i ~~ 0~
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~~
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
Case 2018-297~4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum)nts
-- _
~ l_-1J
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~ ~
212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
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Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System o_ennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
ittli
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Case 2018-29j~~34 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $qoo The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing corl~fial information and documents differently than non-confidential information and doc~nts
-
tI1 gtlt ~ ~ ~ cc ~ ~
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
i 1 = _ ~ ~ -middot ~ 1 C) t l ~
I
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
middotmiddot- ~middot
tr] ~ ~ ~ ~
to ~ ~
~ -----J
--Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
-~ -i---~ t~~ ii ~~~Q middotc--~i ~o~~ c ~ cP~o l l a ~l
gt p ~ ~
r-_ Q
imiddotmiddot (I)
00 _ 00 z ~ 0 00 0) CD a 0 w 0 (1)
CJ ~ ~= -bullmiddot ~ 9 ~o~ 3 0 s i C - ~g~ a en ~= s a s a 0 ~ CQ lt CQ - rmiddot
I 0 r- 0 CD 0 3 5middot 3 0 en (D (D (D ~ n -
_ CD lt 0 lt T C (0 ~ 0 -middot b g b UJ 5middot ~ Q ~ 0 -middot CQ bull bull -
bull ~
s
~ ~ ID N
~ 0
0
tJ
~ sect (I)
6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
~ lll Anthony M Corby Esq C
~ ~ g Bar ID 316852 II
sect 0
75 Cedar Ave ~ Hershey PA 17033 ti 717-256-3000 CI o- mfahertyfahertylawfirmcom 0~ ~ ~ acorbyfahertylawfinnco o - Attorney for Condemnees ~5 ~8 ~~ ofc
~-g l Ill g OJ S igt e ci Q~ ~(I)
sect S 8o ~~ (I)
e8 ~~ C (I)
~ _u l3
~- i ~~ 0~
8~ ff ~o g E ~Jg ClO Igt ~~ 23 =It - Bl -a
~~
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
212019 Update on Priperty Acquisition I Article
UPDATE ON PROPERTY ACQUISITION
At a special meeting on Friday Dec 21 2018 the Lower Merion Board of School Directors voted
to exercise its right of Eminent Domain on two adjacent sites a 104-acre site at 1835 County Line Road and a three-acre site at 1800 W Montgomery Ave both in Villanova This vote
represents an important step in Lower Merion School Districts ongoing effort to deal with the
challenges posed by enrollment growth
Not only are these combined sites the best available choice for fields for the 21s t-century middle
school that the District is planning for 1860 Montgomery Avenue but the condemnation will
keep the property in use for the residents of Lower Merion Township and Narberth rather than
enabling Villanova University to take the property off the tax rolls for its private development
use
Background
To address the current overcrowding and continued increased enrollment the Lower Merion School District (LMSD) plans to build a new middle school for Grades 5-8 at 1860 Montgomery
https wwwlmsdorgabout-1 msdnewsroomarticle-postupdate-on-property-acqu isition-20181221 14
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
rd middotgtlt =o ~ ~
tc ~ f
~ Ul
-
0 0 CD C C) i - I l) -middot i I cc (C
pound -I == _7
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System o_ennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
ittli
t J
~jl] i~ ~J-
middotIJ ~~ I -_ middot1 11 ~
1-~i middot -
bull - jj -middot~ _1~ l
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l) en en ~ -00~ middot~--a en - middotO Omiddot~ -amiddotc Omiddot (I) (1) middotmiddoto a cnr -i(Q ~~o a b (1)
ltlt g )gt lt
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- i= ~ - l)
Tl C) () 2 C i I t~ i 0) cc o r CD 0 ~-
_ _ -D -
l)
N
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0
------
Case 2018-29j~~34 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $qoo The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing corl~fial information and documents differently than non-confidential information and doc~nts
-
tI1 gtlt ~ ~ ~ cc ~ ~
~ ~
By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
i 1 = _ ~ ~ -middot ~ 1 C) t l ~
I
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
middotmiddot- ~middot
tr] ~ ~ ~ ~
to ~ ~
~ -----J
--Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
-~ -i---~ t~~ ii ~~~Q middotc--~i ~o~~ c ~ cP~o l l a ~l
gt p ~ ~
r-_ Q
imiddotmiddot (I)
00 _ 00 z ~ 0 00 0) CD a 0 w 0 (1)
CJ ~ ~= -bullmiddot ~ 9 ~o~ 3 0 s i C - ~g~ a en ~= s a s a 0 ~ CQ lt CQ - rmiddot
I 0 r- 0 CD 0 3 5middot 3 0 en (D (D (D ~ n -
_ CD lt 0 lt T C (0 ~ 0 -middot b g b UJ 5middot ~ Q ~ 0 -middot CQ bull bull -
bull ~
s
~ ~ ID N
~ 0
0
tJ
~ sect (I)
6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
~ lll Anthony M Corby Esq C
~ ~ g Bar ID 316852 II
sect 0
75 Cedar Ave ~ Hershey PA 17033 ti 717-256-3000 CI o- mfahertyfahertylawfirmcom 0~ ~ ~ acorbyfahertylawfinnco o - Attorney for Condemnees ~5 ~8 ~~ ofc
~-g l Ill g OJ S igt e ci Q~ ~(I)
sect S 8o ~~ (I)
e8 ~~ C (I)
~ _u l3
~- i ~~ 0~
8~ ff ~o g E ~Jg ClO Igt ~~ 23 =It - Bl -a
~~
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
212019 Update on Property Acquisition I Article tJ
~ ~venue fhat site cloes not pri)V1de adequace spc1ce for all of the necessary athletic fields sect-
Therefore the Districc has been actively pursuing properties for Field space As part of those
efforts over the summer the District began negotiations to buy the properties at 1835 County
Line Road and at 1800 W Montgomery in Villanova
In the course of negotiations the District learned the owners of the properties vvere also
negotiating with Villanova University Earlier this fall although the sellers had indicated the
District offers were basically acceptable with minor revisions the agreements of sale were never
returned to the District The District later learned the sellers had egtltecuted Agreements of Sale
with Villanova University
Under the terms of the Districts proposed offer the owners of 1835 County Line would receive
$995 million and the owner of 1800 W Montgomery will would receive $2965 million Both
would be allowed to remain on their properties with construction not beginning until 2023 This
is possible because though the new middle school is scheduled to open in 2022 7 th and 8th
graders (who take part in school athletic teams and need the fields) will not be transitioned into
the new school the first year
After the vote Dr Melissa Gilbert President of the Lower Merion Board of School Directors said The Board is thrilled that we are able to acquire these properties Its a win-win for our
community The sellers are being appropriately compensated Our students get the best school
and fields that we can provide And all of the taxpayers who support our schools will reap the
benefits as well
For the District these properties have many advantages over others under consideration - such
as Spring Mill Road And Im confident our residents would rather see the land being used by
their neighbors than by college students who dont live in Lower Merion or Narberth she added
What about the properties on Spring Mill Road The Board approved purchasing them for field
In investigating those properties wetlands were discovered that will make them more expensive
and more difficult to develop for field use
What are the advantages of these properties over Spring Mill that justify paying more for them
bull The properties are closer to the middle school site which will result in reduced transportation
costs The properties have buildings on them that do not have to be torn down and can be used for academic purposes
bull They are located on a more accessible road bull They are flat while Spring Mill has a hill which will make field construction and layout easier
httpswwwImsdorga bout-I msdnewsroomarticle-postupdate-on-property-acquisition-20181221 24
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
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-
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
i 1 = _ ~ ~ -middot ~ 1 C) t l ~
I
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
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--Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
~ lll Anthony M Corby Esq C
~ ~ g Bar ID 316852 II
sect 0
75 Cedar Ave ~ Hershey PA 17033 ti 717-256-3000 CI o- mfahertyfahertylawfirmcom 0~ ~ ~ acorbyfahertylawfinnco o - Attorney for Condemnees ~5 ~8 ~~ ofc
~-g l Ill g OJ S igt e ci Q~ ~(I)
sect S 8o ~~ (I)
e8 ~~ C (I)
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~~
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
212019 Update on Property Acquisition I Article
CJ1 i_d hr District l12ep borh the~ Spring Mill properties a1d these additional prnpertie_
The Board vvill reassess the need for the Sprjng MILi properties once further inspec6ons can be
performed on these latest an6cipated acquisWons
More News
LMHS POOL CLOSED ON SATURDAY FEBRUARY 2 FOR A DIVING MEET
Saturday February 2 2019
DAILY ANNOUNCEMENTS
Daily Announcements
COMMUNITY PSSA TUTORING
Hosted by Bethel Academy for students in Grades 3-8
LMSD HEALTH TOPICS PARENT EDUCATION PROGRAM 2019
Continues throughout February with Extracurricular How Much is Too Much on 25 at Penn Wynne and Mindfulness and the Elementary Child on 227 at Cynwyd
https wwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 34
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
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Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System o_ennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
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Case 2018-29j~~34 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $qoo The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing corl~fial information and documents differently than non-confidential information and doc~nts
-
tI1 gtlt ~ ~ ~ cc ~ ~
~ ~
By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
i 1 = _ ~ ~ -middot ~ 1 C) t l ~
I
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
middotmiddot- ~middot
tr] ~ ~ ~ ~
to ~ ~
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--Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
-~ -i---~ t~~ ii ~~~Q middotc--~i ~o~~ c ~ cP~o l l a ~l
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
~ lll Anthony M Corby Esq C
~ ~ g Bar ID 316852 II
sect 0
75 Cedar Ave ~ Hershey PA 17033 ti 717-256-3000 CI o- mfahertyfahertylawfirmcom 0~ ~ ~ acorbyfahertylawfinnco o - Attorney for Condemnees ~5 ~8 ~~ ofc
~-g l Ill g OJ S igt e ci Q~ ~(I)
sect S 8o ~~ (I)
e8 ~~ C (I)
~ _u l3
~- i ~~ 0~
8~ ff ~o g E ~Jg ClO Igt ~~ 23 =It - Bl -a
~~
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
I 212019 Update on Property Acquisition I Article
tJ
PAIR OF LMSD STUDENTS HONORED IN 2019 MOUTHFUL MONOLOGUE FESTIVAL Bala Cynwyds Katherine Fang and Lower Merion High Schools Mira Ghosh recently had their monologues selected by a panel of judges out of more than 600 submissions from throughout the Greater Philadelphia area
Lower Merion School District
301 East Montgomery Ave Ardmore PA 19003
P 6106451800
EMPLOYMENT
SITE MAP
f
httpslwwwlmsdorgabout-1msdnewsroomarticle-posUupdate-on-property-acquisition-20181221 44
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
rd middotgtlt =o ~ ~
tc ~ f
~ Ul
-
0 0 CD C C) i - I l) -middot i I cc (C
pound -I == _7
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System o_ennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
ittli
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Tl C) () 2 C i I t~ i 0) cc o r CD 0 ~-
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Case 2018-29j~~34 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $qoo The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing corl~fial information and documents differently than non-confidential information and doc~nts
-
tI1 gtlt ~ ~ ~ cc ~ ~
~ ~
By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
i 1 = _ ~ ~ -middot ~ 1 C) t l ~
I
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
middotmiddot- ~middot
tr] ~ ~ ~ ~
to ~ ~
~ -----J
--Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
-~ -i---~ t~~ ii ~~~Q middotc--~i ~o~~ c ~ cP~o l l a ~l
gt p ~ ~
r-_ Q
imiddotmiddot (I)
00 _ 00 z ~ 0 00 0) CD a 0 w 0 (1)
CJ ~ ~= -bullmiddot ~ 9 ~o~ 3 0 s i C - ~g~ a en ~= s a s a 0 ~ CQ lt CQ - rmiddot
I 0 r- 0 CD 0 3 5middot 3 0 en (D (D (D ~ n -
_ CD lt 0 lt T C (0 ~ 0 -middot b g b UJ 5middot ~ Q ~ 0 -middot CQ bull bull -
bull ~
s
~ ~ ID N
~ 0
0
tJ
~ sect (I)
6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
~ lll Anthony M Corby Esq C
~ ~ g Bar ID 316852 II
sect 0
75 Cedar Ave ~ Hershey PA 17033 ti 717-256-3000 CI o- mfahertyfahertylawfirmcom 0~ ~ ~ acorbyfahertylawfinnco o - Attorney for Condemnees ~5 ~8 ~~ ofc
~-g l Ill g OJ S igt e ci Q~ ~(I)
sect S 8o ~~ (I)
e8 ~~ C (I)
~ _u l3
~- i ~~ 0~
8~ ff ~o g E ~Jg ClO Igt ~~ 23 =It - Bl -a
~~
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
- -Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and docum1nts
rd middotgtlt =o ~ ~
tc ~ f
~ Ul
-
0 0 CD C C) i - I l) -middot i I cc (C
pound -I == _7
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System o_ennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
ittli
t J
~jl] i~ ~J-
middotIJ ~~ I -_ middot1 11 ~
1-~i middot -
bull - jj -middot~ _1~ l
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l) en en ~ -00~ middot~--a en - middotO Omiddot~ -amiddotc Omiddot (I) (1) middotmiddoto a cnr -i(Q ~~o a b (1)
ltlt g )gt lt
- bull w 3d bull ~Li (D
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Tl C) () 2 C i I t~ i 0) cc o r CD 0 ~-
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0
------
Case 2018-29j~~34 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $qoo The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing corl~fial information and documents differently than non-confidential information and doc~nts
-
tI1 gtlt ~ ~ ~ cc ~ ~
~ ~
By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
i 1 = _ ~ ~ -middot ~ 1 C) t l ~
I
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
middotmiddot- ~middot
tr] ~ ~ ~ ~
to ~ ~
~ -----J
--Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
-~ -i---~ t~~ ii ~~~Q middotc--~i ~o~~ c ~ cP~o l l a ~l
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6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
~ lll Anthony M Corby Esq C
~ ~ g Bar ID 316852 II
sect 0
75 Cedar Ave ~ Hershey PA 17033 ti 717-256-3000 CI o- mfahertyfahertylawfirmcom 0~ ~ ~ acorbyfahertylawfinnco o - Attorney for Condemnees ~5 ~8 ~~ ofc
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sect S 8o ~~ (I)
e8 ~~ C (I)
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8~ ff ~o g E ~Jg ClO Igt ~~ 23 =It - Bl -a
~~
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
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Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System o_ennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
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Case 2018-29j~~34 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $qoo The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing corl~fial information and documents differently than non-confidential information and doc~nts
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By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
i 1 = _ ~ ~ -middot ~ 1 C) t l ~
I
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
middotmiddot- ~middot
tr] ~ ~ ~ ~
to ~ ~
~ -----J
--Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
-~ -i---~ t~~ ii ~~~Q middotc--~i ~o~~ c ~ cP~o l l a ~l
gt p ~ ~
r-_ Q
imiddotmiddot (I)
00 _ 00 z ~ 0 00 0) CD a 0 w 0 (1)
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bull ~
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tJ
~ sect (I)
6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
~ lll Anthony M Corby Esq C
~ ~ g Bar ID 316852 II
sect 0
75 Cedar Ave ~ Hershey PA 17033 ti 717-256-3000 CI o- mfahertyfahertylawfirmcom 0~ ~ ~ acorbyfahertylawfinnco o - Attorney for Condemnees ~5 ~8 ~~ ofc
~-g l Ill g OJ S igt e ci Q~ ~(I)
sect S 8o ~~ (I)
e8 ~~ C (I)
~ _u l3
~- i ~~ 0~
8~ ff ~o g E ~Jg ClO Igt ~~ 23 =It - Bl -a
~~
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
------
Case 2018-29j~~34 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $qoo The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemeennsylvania Case Records of the Appellate and Trial Courts that require filing corl~fial information and documents differently than non-confidential information and doc~nts
-
tI1 gtlt ~ ~ ~ cc ~ ~
~ ~
By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
i 1 = _ ~ ~ -middot ~ 1 C) t l ~
I
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
middotmiddot- ~middot
tr] ~ ~ ~ ~
to ~ ~
~ -----J
--Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
-~ -i---~ t~~ ii ~~~Q middotc--~i ~o~~ c ~ cP~o l l a ~l
gt p ~ ~
r-_ Q
imiddotmiddot (I)
00 _ 00 z ~ 0 00 0) CD a 0 w 0 (1)
CJ ~ ~= -bullmiddot ~ 9 ~o~ 3 0 s i C - ~g~ a en ~= s a s a 0 ~ CQ lt CQ - rmiddot
I 0 r- 0 CD 0 3 5middot 3 0 en (D (D (D ~ n -
_ CD lt 0 lt T C (0 ~ 0 -middot b g b UJ 5middot ~ Q ~ 0 -middot CQ bull bull -
bull ~
s
~ ~ ID N
~ 0
0
tJ
~ sect (I)
6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
~ lll Anthony M Corby Esq C
~ ~ g Bar ID 316852 II
sect 0
75 Cedar Ave ~ Hershey PA 17033 ti 717-256-3000 CI o- mfahertyfahertylawfirmcom 0~ ~ ~ acorbyfahertylawfinnco o - Attorney for Condemnees ~5 ~8 ~~ ofc
~-g l Ill g OJ S igt e ci Q~ ~(I)
sect S 8o ~~ (I)
e8 ~~ C (I)
~ _u l3
~- i ~~ 0~
8~ ff ~o g E ~Jg ClO Igt ~~ 23 =It - Bl -a
~~
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
By -----~-~----__ __ Kenneth G Valosky
VILLANOVA UNIVERSITY
OFFiCE rhc ViCE PRcSIDENT mJ GENERL COUNSEL
January 2 2019
John Bennett and Nance DiRocco 1835 County Line Road Villanova Pennsylvania 19085
Re Termlpation of Agreement of Sale for 1835 Countv Linc Road
Dear Mr Bennett and Ms DiRocco
Reference is hereby made to the Standard Agreement for the Sale of Real Estate dated October 30 2018 between Villanova University in the State of Pennsylvania (Buyer) on the one hand and John Bennett and Nance Di Rocco (Sellers) on the other hand as amended (the Agreement of Sale) Capitalized terms not defined in this letter will have the meaning set forth with respect to those terms in the Agreement of Sale
As you know at a meeting of the Board of Directors of the Lower Merion School District on December 21 2018 the Board of Directors authorized the acquisition of the Property (as defined in the Agreement of Sale) by the Lower Merion School District including by eminent domain and filing a declaration of taking Pursuant to Section 32(8) of the Agreement of Sale Buyer may tenninale the agreement in the event of the exercise of any such right by the Lower Merion School District and receive a full refund of all deposit monies paid on account of the Purchase Price
Therefore this letter serves as written notice from Buyer to you as Sellers that the Agreement of Sale is hereby tenninated and is void We will notify Commonwealth Land Title Insurance Company regarding the refund of the full deposit amount of$ I 00000 Please promptly reply and execute such actions and documents as requested by Commonwealth Land Title Insurance Company regarding the release of those funds We appreciate your timely cooperation and assistance
Sincerely VILLANOVA UNIVERSITY
_ Executive Vice President
800 Lancaster Avenue I Villanova Pennsylvania I 9085 ] PHONE 610 5 I 9-i8 [ FAX 6 IO 519-7875 I villanoanu
i 1 = _ ~ ~ -middot ~ 1 C) t l ~
I
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
middotmiddot- ~middot
tr] ~ ~ ~ ~
to ~ ~
~ -----J
--Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
-~ -i---~ t~~ ii ~~~Q middotc--~i ~o~~ c ~ cP~o l l a ~l
gt p ~ ~
r-_ Q
imiddotmiddot (I)
00 _ 00 z ~ 0 00 0) CD a 0 w 0 (1)
CJ ~ ~= -bullmiddot ~ 9 ~o~ 3 0 s i C - ~g~ a en ~= s a s a 0 ~ CQ lt CQ - rmiddot
I 0 r- 0 CD 0 3 5middot 3 0 en (D (D (D ~ n -
_ CD lt 0 lt T C (0 ~ 0 -middot b g b UJ 5middot ~ Q ~ 0 -middot CQ bull bull -
bull ~
s
~ ~ ID N
~ 0
0
tJ
~ sect (I)
6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
~ lll Anthony M Corby Esq C
~ ~ g Bar ID 316852 II
sect 0
75 Cedar Ave ~ Hershey PA 17033 ti 717-256-3000 CI o- mfahertyfahertylawfirmcom 0~ ~ ~ acorbyfahertylawfinnco o - Attorney for Condemnees ~5 ~8 ~~ ofc
~-g l Ill g OJ S igt e ci Q~ ~(I)
sect S 8o ~~ (I)
e8 ~~ C (I)
~ _u l3
~- i ~~ 0~
8~ ff ~o g E ~Jg ClO Igt ~~ 23 =It - Bl -a
~~
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
I
Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial Systemof Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents
middotmiddot- ~middot
tr] ~ ~ ~ ~
to ~ ~
~ -----J
--Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
-~ -i---~ t~~ ii ~~~Q middotc--~i ~o~~ c ~ cP~o l l a ~l
gt p ~ ~
r-_ Q
imiddotmiddot (I)
00 _ 00 z ~ 0 00 0) CD a 0 w 0 (1)
CJ ~ ~= -bullmiddot ~ 9 ~o~ 3 0 s i C - ~g~ a en ~= s a s a 0 ~ CQ lt CQ - rmiddot
I 0 r- 0 CD 0 3 5middot 3 0 en (D (D (D ~ n -
_ CD lt 0 lt T C (0 ~ 0 -middot b g b UJ 5middot ~ Q ~ 0 -middot CQ bull bull -
bull ~
s
~ ~ ID N
~ 0
0
tJ
~ sect (I)
6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
~ lll Anthony M Corby Esq C
~ ~ g Bar ID 316852 II
sect 0
75 Cedar Ave ~ Hershey PA 17033 ti 717-256-3000 CI o- mfahertyfahertylawfirmcom 0~ ~ ~ acorbyfahertylawfinnco o - Attorney for Condemnees ~5 ~8 ~~ ofc
~-g l Ill g OJ S igt e ci Q~ ~(I)
sect S 8o ~~ (I)
e8 ~~ C (I)
~ _u l3
~- i ~~ 0~
8~ ff ~o g E ~Jg ClO Igt ~~ 23 =It - Bl -a
~~
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
--Case 2018-29523-4 Docketed at Montgomery County Prothonotary on 021072019 602 PM Fee = $000 The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documnts
-~ -i---~ t~~ ii ~~~Q middotc--~i ~o~~ c ~ cP~o l l a ~l
gt p ~ ~
r-_ Q
imiddotmiddot (I)
00 _ 00 z ~ 0 00 0) CD a 0 w 0 (1)
CJ ~ ~= -bullmiddot ~ 9 ~o~ 3 0 s i C - ~g~ a en ~= s a s a 0 ~ CQ lt CQ - rmiddot
I 0 r- 0 CD 0 3 5middot 3 0 en (D (D (D ~ n -
_ CD lt 0 lt T C (0 ~ 0 -middot b g b UJ 5middot ~ Q ~ 0 -middot CQ bull bull -
bull ~
s
~ ~ ID N
~ 0
0
tJ
~ sect (I)
6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
~ lll Anthony M Corby Esq C
~ ~ g Bar ID 316852 II
sect 0
75 Cedar Ave ~ Hershey PA 17033 ti 717-256-3000 CI o- mfahertyfahertylawfirmcom 0~ ~ ~ acorbyfahertylawfinnco o - Attorney for Condemnees ~5 ~8 ~~ ofc
~-g l Ill g OJ S igt e ci Q~ ~(I)
sect S 8o ~~ (I)
e8 ~~ C (I)
~ _u l3
~- i ~~ 0~
8~ ff ~o g E ~Jg ClO Igt ~~ 23 =It - Bl -a
~~
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
tJ
~ sect (I)
6(1) o C g ~ CERTIFICATE OF SERVICE 00 0 g ii tJ ~ i I Michael F Faherty Attorney for Condemnees certify that a copy of the foregoing 0 C
~g g ~ document filed on February _J_ 2019 was sent to the following individuals via first class mail 0 e ~-S 15 i on February _7_ 2019 ~ ~ Q g -~ 8 Drew K Kapur Esq [ sect ID No 35018 (I) C S c Duane Morris LLP if 30 South 17th Street -~ t Philadelphia PA 19103-4196 ci ~ ~ dkkapur(a)duanemorriscom o~ 215-979-1000 secti ~ Ii E Attorney for Condemnor - sg
~i ~7-~ ig C E g Clgt Ill ~ E Michael F Faherty Esq ~ ~ Bar ID 55860 (I)
~ lll Anthony M Corby Esq C
~ ~ g Bar ID 316852 II
sect 0
75 Cedar Ave ~ Hershey PA 17033 ti 717-256-3000 CI o- mfahertyfahertylawfirmcom 0~ ~ ~ acorbyfahertylawfinnco o - Attorney for Condemnees ~5 ~8 ~~ ofc
~-g l Ill g OJ S igt e ci Q~ ~(I)
sect S 8o ~~ (I)
e8 ~~ C (I)
~ _u l3
~- i ~~ 0~
8~ ff ~o g E ~Jg ClO Igt ~~ 23 =It - Bl -a
~~
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the
Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts that
require filing confidential information and documents differently than non-confidential
information and documents
Respectfully submitted
FAHERTY LAW FIRM
Michael F Faherty Esquire Attorney Id 55860 75 Cedar A venue Hershey Pennsylvania 17033 Tel (717)256-3000 mfahertyfahertylawfirmcom Attorney for Plaintiffs
Dated February 7 2019
24
- Structure Bookmarks
-