Re Condemnation by the City of Coatesville of Certain Properties and Property Interests for Use As a Public Golf Course, 64 Pa. D. & C.4th 231

MAHON, J., And now, January 11,2002, on consideration of the preliminary objections interposed by Richard A. and Nancy K.

Saha to both the initial declaration of talcing filed by the condemnor the City of Coatesville on August 2, 2000, and to an amended declaration of taking filed on February 13,2001, with respect to about 43 acres of the condemnees’ about 47.5-acre tract located along Mount Airy Road and Kings Highway (Route 340) in Valley and West Cain Townships, Chester County, on which tract the city has proposed to locate facilities in connection with a regional recreation center including, particularly, a portion of a golf course and a golf training center, and on further consideration of the evidentiary record made by the parties pursuant to our order of August 27, 2000, and

section 406(

e) of the Eminent Domain Code, and following an evidentiary hearing and oral argument conducted on July 26, 2001, and on further consideration of the written argument including proposed factual findings and legal conclusions presented by the parties, we enter the following: FINDINGS OF FACT

(1) The parties by stipulation of record on July 26, 2001, have agreed that the record for our consideration in the matter of the preliminary objections consists of the transcribed depositions of some 23 persons including the condemnees and officials, employees, and consultants of the condemnor, a series of some 54 documentary exhibits admitted without objection on behalf of the condemnees, and some 36 documentary exhibits, 29 of which (“C-l” through “C-32”) were admitted without objection on behalf of the condemnor.

With respect to the documentary exhibits marked for identification as exhibits “C-33” through “C-39,” to which the condemnees have raised objection, we here overrule the said objections and accept the said exhibits of record. Exhibits “C-33” and “C-34” are the initial and amended declarations of taking which are the operative filings and are part of the record in any event.

Exhibit “C-35” is a letter written by the condemnees’ counsel which is objected to along with the affidavits marked as exhibits “C-36” and “C-37” solely on the ground that they were not identified at an earlier point in the pretrial proceedings. Since no surprise or prejudice is here asserted by the condemnees and no request was made to supplement the record in response to these exhibits, the objection is overruled.

Exhibit “C-38” is our prior order dated April 27,2001 in this case and exhibit “C-39” is a photocopy of a judicial opinion of another court which, although not properly introduced as a documentary exhibit, is certainly appropriate for our judicial notice and is received as such.

(2) The following witnesses were deposed on the dates indicated: City Council President Stephon Ehnes on February 1 and 28,2001; City Council Vice President David Griffith on March 1 and 15,2001; Council Member David DeSimone on February 9,2001; Council Member Kevin Rolston on February 7, 2001; Council Member William J. Chertok on March 5 and 19, 2001; Council Member Winifred Mayo on March 8 and April 10, 2001; Council Member Carmen Green on February 27, March 20 and April 27,2001; City Manager Paul G. Janssen Jr. on April 10,11,18 and 25,2001; Christopher J.

Chamas of Insignia/ESG Inc. on February 21, 2001; Russell Dunlevy of Carroll Engineering Corporation on February 13 and March 14, 2001; City Finance Director Beth Butch on March 20,2001; Nancy Saha on April 12,2001; Richard Saha on April 12, 25 and 27, 2001; Richard Saha Jr. on April 25, 2001; John E. Robinson on April 25, 2001; Phyllis A. Robinson on April 25, 2001; Don L. Lipinski on April 25, 2001; Francis Newlin on April 27 and May 1, 2001; Chester Johnson on April 25, 2001; Gregory Lownes on April 27,2001; Ernest E. Campos Sr. on April 27, 2001; Assistant City Manager Francis B.

Pilotti on May 1, 2001; and City Solicitor John S. Carnes Jr., Esquire, on April 27, 2001. In the aggregate, the record consists of more than 2000 pages of transcribed testimony and more than twice this number of pages of documentary exhibits. We have reviewed the whole of the record with a degree of care commensurate with the significance of the issues presented.

(3) The condemnor is the City of Coatesville, a city of the third class and the only city located in Chester County, Pennsylvania. The city is governed pursuant to, inter alia, a Home Rule Charter adopted on or about May 5,1979, and now codified as

chapter 11 of the city’s Code of Regulations. The city’s governing authority is its city council.

(4) Members of the Coatesville City Council, the official actions of which are here at issue, include Stephon Hines, president of city council; David H. Griffith, vice president of city council; William J. Chertok (president of council in 1998 at the beginning of the period of time here pertinent); David S. DeSimone; Carmen Green; Winifred S. Mayo; and Kevin Rolston.

(5) The condemnees are Richard A. and Nancy K. Saha.

(6) The Sahas’ property here condemned is an about 49-acre parcel of ground located in Valley and West Cain Townships, in which the Sahas have lived since 1970 in a 250-year-old farm house which they refurbished and in which they raised four of their five children.

(7) Two of the Sahas’ children, their spouses, and certain of the Sahas’ grandchildren, live on adjoining properties which were subdivided for them by the condemnees.

(8) The property condemned by the city is known as 123 Mount Airy Road, and consists of tax parcels nos. 38-2-29.1 and 28-9-91 and, as described in the initial declaration of taking filed on August 2,2000, as well as in the amended declaration of taking filed on or about February 13, 2001, with a gross area of about 47.5 acres but excluding therefrom a six-acre parcel and a nonexclusive right-of-way or easement, 20 feet in width, connecting the six-acre parcel with Mount Airy Road.

(9) In early 1998, during the council presidency of William Chertok, a citizen with the surname of Imperato approached city council with a proposal to develop the city’s closed landfill property as a gun club and shooting range.

(10) City council was concerned with liability and other issues raised by the gun club proposal, gave no immediate response to Imperato, and became convinced that a more appropriate use for landfill property must be found.

(11) Council was also motivated in this regard by the continuing expense related to environmental monitoring of the landfill property, an expense which, in 1998, was about SSO^OO.

(12) Consideration of the matter of development of the city’s lands for recreational purposes including the possibility of a municipal golf course began with a discussion of city council in executive session on September 28, 1998, at which time the council considered the retention of Carroll Engineering Corporation to conduct a feasibility study.

(13) City council took formal action to authorize the retention of an expert consultant “to study alternative proactive uses for retired city landfill ground” during the course of the public meeting held later on September 28, 1998.

(14) In December 1998, the city engaged Carroll Engineering Corporation to study the feasibility of development of city-owned property for active and passive recreation, commercial uses, and residential development.

(15) The city-owned property, consisting of the former landfill which occupied about 40 acres of the 77-acre parcel and an adjacent tract to the west of the landfill and south of Route 30, aggregated about 110 acres.

(16) In addition to the city-owned property, Carroll Engineering was charged to study adjacent lands aggregating 43 acres and including the lands of Zaferes and A. Duie Pyle. The total tract area studied by Carroll Engineering was 153 acres.

(17) The resulting feasibility study, dated February 17, 1999, was presented to city council during an executive session conducted on February 22, 1999.

(18) The February 17, 1999 Carroll Engineering feasibility study concluded that development of the 153-acre tract studied “can accommodate commercial and recreational land uses, subject to adherence to zoning requirements and state and local permitting. However, the 153-acre site may not have enough land acreage to accommodate a full golf course and commercial uses.”

(19) Appended to the Carroll Engineering feasibility study are a series of land use plans which include the designation of “optional additional parcels” consisting of tax parcels nos. 38-3-23.1, and 38-3-23.2; 38-3-23.2.A; 38-3-23.2B; 38-3-24; 38-3-25; and 38-3-26.

(20) The aggregate area of the optional additional parcels designated in the Carroll Engineering feasibility study’s land use plans is 53.155 acres which, when added to the initial study area of 153 acres yielded a recommended area of 206.153 acres.

(21) By resolution no. 99-6, adopted during a regularly scheduled public meeting held on March 8, 1999, city council “authorize^] the city manager to act on behalf of the city in investigating, negotiating, and purchasing property for the benefit of the city, up to a maximum total expenditure of $800,000.”

(22) By an evolving memorandum dated March 8,22, and 29,1999, Paul G. Janssen, the city manager, informed city council of “the next stage of [the] information found in” the Carroll Engineering feasibility study. Mr. Janssen advised that the city must “acquire an additional 50 acres to truly look at a real opportunity for a golf course.”

(23) The March 1999 memorandum then “details six parcels which are adjacent to the city owned land and conducive to use with the golf course ....” The parcels listed in the chart that follows in the memorandum possess an aggregate area of 60.60 acres and include the lands of Christopher and Kathryn Snyder (vendees of the Chriswell property); A. Duie Pyle (15.7 acres included in the initial 153-acre study tract); Zafries [sic], Ursini, and Phillips (17.3 acres included in the initial 153-acre study tract); Everet [sic] Sheeder, and Gertrude Horowitz [sic].

(24) In a narrative paragraph following the six-parcel chart, appears the following: “In addition parcel 38-2-29-1 [sic] has 38.2 [sic] acres adjacent to the A. Duie Pyle site.” This reference, apparently intended to refer to that portion of the lands of Richard and Nancy Saha located in Valley Township, is the first documentary reference in this extensive record to condemnation of the condemnees’ property.

(25) On the agenda of the regularly scheduled public meeting of city council conducted on April 12, 1999, is the first reading of an ordinance entitled “An ordinance exercising the power of eminent domain and condemning certain properties for recreation facilities and park-lands relative to construction of a golf course and related recreation places.” Appended to the text of the ordinance is a plan showing the properties to be condemned. The plan appears to be derived from the land use plans appended to the Carroll Engineering feasibility study.

Each of the optional additional parcels depicted in the land use plans is also so designated and proposed for condemnation. The ordinance exhibit (and, correspondingly, the text) differs from the land use plans only in the depiction of the condemnees’ property in Valley Township and the designation thereof as proposed for condemnation. A note in the text of the ordinance expresses the intent of city council to spare the homes located on other properties to be condemned.

No such intent is expressed with respect to the home, bam, and other outbuildings located on the condemnees’ lands, the whole of which in Valley Township are proposed for condemnation.

(26) The city solicitor’s certification affixed to the April 12, 1999 ordinance indicates “that this is a trae and correct copy of the ordinance first considered by the City of Coatesville at its regularly scheduled meeting of April 12,1999, and which is scheduled for a second reading at the city council’s regularly scheduled meeting of April 26, 1999.”

(27) A photocopy of the April 12,1999 ordinance was sent to the condemnees under cover of the city solicitor’s April 21, 1999 letter.

(28) The second reading of the April 12, 1999 ordinance did not occur as scheduled.

(29) Instead, city council, assertedly in response to the sentiment expressed by citizens during and following the April 12,1999 session, determined to solicit additional expert consultation and to reconsider the project following receipt thereof.

(30) Thereafter, the city manager prepared and transmitted to more than one dozen consulting firms, a request for proposals to conduct an economic feasibility and marketing study of the contemplated regional recreation center.

(31) In about May 1999, Thomas Comitta Associates Inc., as the city’s consulting professional land planners, prepared an undated document entitled “Revitalization initiatives — City of Coatesville” which depicts by map the locations of 36 designated initiative projects of which the “regional recreation center” is no. 28.

(32) The revitalization initiatives plan, admitted as exhibit “Saha-41,” depicts a partial condemnation of the Saha property for golf-related uses and the exception from the condemnation of a parcel possessing frontage on Mount Airy Road and with an area of about 14.5 acres.

(33) The manager, city solicitor, and the city’s special counsel participated in the interviews of those firms which responded to the request for proposals concerning a supplemental economic feasibility and marketing study of the proposed regional recreational complex.

(34) Ultimately, a recommendation was made to city council that Insignia/ESG be retained for this purpose and council accepted this recommendation.

(35) The study subsequently submitted by Insignia ESG, entitled: “City of Coatesville proposed regional recreation complex” (Insignia report) prepared for Herbert Bass, Esquire (the city’s special counsel herein) and dated March 22, 2000, was presented to council sometime thereafter in the spring of 2000 by one Chris Charnas who does not appear to be identified in the report itself.

(36) The Insignia report considers the economic feasibility of a golf course, multiplex theater, and hotel/conference center and concludes: “(

a) That ‘an opportunity exists to create a first-class municipally-owned golf course in Coatesville. The land for the golf course is ideally suited for a fun yet challenging layout.’ Chester County can support a municipal golf course in Coatesville with weekend greens fees of $46.50 for non-residents and $41.50 for residents. A maximum investment of $5 million is recommended. The golf course will be able to support bond payments on the investment in year three of operations. Net income in the third year of operation of the golf course is projected to be $545,OOO. “(

b) That the contemplated multiplex theater project is ‘deemed feasible at this time.’ Preference is given to a private operator of between nine and 12 auditoriums (37,500-50,000 square feet) with between 475 and 650 parking spaces on between 8.69 and 12.07 acres to pay to the city as lessor from $12 to $19.75 per square foot in a ‘triple net’ lease. “(

c) That the city should ‘proceed with the development of a full-service, group meetings-oriented hotel’ by ‘attract[ing] a third-party hotel developer to enter into a long-term ground lease to build and own the project,’ which ‘should be affiliated with a first-class hotel chain’ and ‘in the 150-250 room [125,000-200,000 square feet on five to 10 acres] range, with adequate meeting, recreational and restaurant space... [and] designed and managed in such a way as to integrate with the golf course operation.’ Various financial projections are offered including a projected ground rent for a 250-room hotel of 2 percent of hotel revenue or $455,486 in the fourth year of operation. “(

d) That a two-rink, 65,000 to 70,000 square foot ice-skating facility ‘incorporating] a retail store, pro shop, party room, locker rooms, hockey clinics, and figure skating instruction, age group hockey leagues, competitive figure skating, game room, video arcade, limited stadium seating, fitness center, restaurant and beverage area, hockey and figure skating camps and large meeting rooms’ would be feasible and should be developed by the city at ‘a typical construction and fit-out cost of approximately $8 million.’ “(

e) That the unserved regional population would be sufficient to support a 40-lane bowling facility of approximately 40,000 square feet which would ‘be feasible at this time under the current competitive market.’ “(

f) That the proposed regional recreation complex would provide ‘many employment opportunities for the citizens of Coatesville’ and ‘an additional influx of money . . . into the public sector,’ the ‘economic impetus’ of which ‘is important to the revitalization of the City of Coatesville .... In conclusion, we believe that development of the regional recreational complex will provide a significant economic engine to revitalize this area.’ ”

(37) The city’s finance director, Beth Butch, performed an independent confirmation of the internal consistency of the calculations contained in the Insignia report.

(38) In September 1999, Carroll Engineering prepared an engineered drawing of the Saha condemnation including the depiction of a dimensioned, excepted parcel materially similar in configuration to that depicted in the revitalization initiatives plan and indicating the area of the excepted parcel to be 14.5 acres.

(39) Under cover of a letter dated October 21,1999, the city’s solicitor transmitted to the Sahas’ counsel a “draft copy of the development plan” which depicted the condemnation and use of about seven acres of the Sahas’ property located in the extreme north and northeastern portion thereof. The draft development plan was mailed to each of the affected landowners in order to “open negotiations.”

(40) The portion of the Sahas’ lands shown in the draft development plan as part of the regional recreational complex and, therefore, to be acquired for that purpose is significantly smaller than the condemnation parcel as depicted in the May 1999 revitalization initiatives plan.

(41) The development plan described in the preceding paragraphs and admitted into the record of these proceedings as, inter alia, exhibit “Saha-22” remained the public expression of city council’s intentions with respect to the Saha property until at least as late as June 19, 2000, and was presented as the plan of development by city council during the course of a public meeting conducted on that date.

(42) By letter dated November 16,1999, the condemnees, by their counsel, informed the city that they were not interested in negotiating the sale of their lands.

(43) The feasibility and marketing study prepared by Insignia/ESG was issued on March 22, 2000, and was presented to city council shortly thereafter.

(44) Immediately following the issuance of the Insignia/ESG study, and for the purpose of “meshing ... the Insignia report with the needs of the First Tee program” Carroll Engineering prepared an undated, letter-sized graphic entitled “Coatesville schematic master plan” which is limited in scope to the Saha and adjacent properties located north of the Route 30 by-pass, south of Route 340, and lying between Mount Airy Road and the West Brandywine Creek. This plan depicts the Saha property as developed for golf use together with parking for commercial uses located on adjacent property.

The excepted parcel depicted on exhibit “C-4,” the schematic master plan, is consistent with that shown on exhibits “Saha-21” and “Saha-41”; that is, an excepted parcel about 14.5 acres in area resulting in a suggested condemnation of about 33 acres or more than 4.7 times the area to be condemned as depicted in exhibits “Saha-11” and “Saha-22.”

(45) The record is unclear as to whether city council ever received or reviewed exhibit “C-4.”

(46) Also around this time, in April 2000, Carroll Engineering prepared for job no. 99-8501, an engineered plan, dated April 4, 2000; approximately 36" by 48" in dimensions and drawn to the scale of one inch equals 200 feet; entitled “schematic master plan.” This plan depicts the whole of the Saha property developed for golf use (a series of par three holes), a “family entertainment center” located in West Cain Township, and parking for a 40-lane bowling facility and a two-rink ice-skating rink located on adjacent property. No excepted parcel is depicted on this plan.

(47) Admitted as exhibit “C-5” is an oversized, assembled engineered drawing, neither dated nor titled and displaying no identifying legend of any kind and depicting, at a scale of approximately one inch to 100 feet, the contiguous lands, including those of the Sahas, on which the city wishes to develop the regional recreational facility.

This plan contains the outlines of proposed structures and other improvements including access drives and parking areas together with handwritten labels, arrows, and other markings all superimposed over the engineered “blueprint.” Golf tees, fairways, greens, and pins together with their distances and par designation are also shown by means of drafting symbols superimposed on the plan.

The Saha property is depicted in this plan developed only for parking at the periphery for uses located on adjacent property — suggesting a condemnation along the lines of the seven-acre taking depicted in exhibits “Saha-11” and “Saha-22.” Also shown in tentative markings suggesting a later addition without the benefit of drafting instruments is the perimeter of what appears to be a proposed excepted parcel. Neither area nor dimension figures are indicated but the parcel appears to be larger than the six-acre exception tract no.

I but smaller than the 14.5-acre excepted parcel shown in exhibits “Saha-21” and “Saha-41.” In addition, the excepted parcel shown in exhibit “C-5” possesses about 80 feet of frontage on Mount Airy Road.

(48) The record also includes exhibit “C-8,” prepared by Carroll Engineering, undated, entitled “Land area requirement plan — total acres: 233.23 acres; and depicting the location, boundaries, adjacent roadways, tax parcel designators, and, in most instances, the record title owner of each of the properties made the subject of ordinance no. 1132-2000. Proposed uses and their approximate area requirements are listed in a table on the plan styled “Land area requirements table” but are not located on the tract. The whole of the Saha property, without reference to an excepted parcel, is shown as part of the assemblage.

(49) The aggregate of all of the area requirements for the specified land uses shown in the table is a range from 205.69 to 259.07 acres. This does not account for lands devoted to multiple uses. For example, no reason is given why yard and building setback areas for some uses could not be shared or designed to encompass a portion of the outdoor, open air requirements related to other uses. In the absence of such analysis, we give little weight to this exhibit.

(50) Mr. Janssen testified that exhibit “C-8” was prepared sometime during the period from the beginning of April through mid-June 2000 and prior to enactment of ordinance no. 112-2000 on June 26, 2000.

(51) During an executive session of city council held on June 5, 2000, Stephon Hines, president of city council, called for a special meeting to be conducted on Tuesday, June 13, 2000, at 5 p.m. for the purpose of conducting the first reading of the ordinance.

(52) City council also placed the issue of the proposed ordinance on its agenda and introduced it at the regular meeting on June 12, 2000, at which time 50 to 75 persons other than city council and staff were in attendance and 17 of the attendees spoke with respect to the ordinance.

(53) John S. Carnes Jr., Esquire, solicitor for the city, prepared the notice for the special meeting.

(54) On June 8, 2000, Mr. Carnes faxed the notice to the Daily Local News, which published it on June 9, 2000. In addition, Mr. Carnes also placed an advertisement in the Daily Local News, a newspaper of general circulation in Chester County, setting forth the language of the ordinance that would be considered at the special meeting.

(55) Frances Newlin, as executive secretary to the city manager, was responsible for posting the notice of the special meeting and did so at around noon on June 12, 2000, by affixing both notices prepared by Mr. Carnes, with transparent tape, to the glass panel in the door at the main entrance to city hall, the usual place for the posting of such notices, all as per the telephone instructions of Mr. Carnes.

(56) Approximately 50 to 75 people, other than city council and staff, attended the special meeting and 15 of these attendees including eight of whom had not spoken at the regular meeting on April 12,2000, gave their views concerning the proposed ordinance.

(57) On June 26,2000, city council adopted ordinance no. 1132 of 2000, entitled “An ordinance authorizing the acquisition by amicable negotiation or by the exercise of eminent domain of certain properties and property interests for use as a public golf course and related facilities and for other recreational purposes.”

(58) The Saha property is one of the properties identified for acquisition in the ordinance.

(59) Other properties identified for acquisition in ordinance no. 1132-2000 include (1) 15.7 acres of A.

Duie Pyle Inc. designated as tax parcel no. 16-1-40.1; (2) 7 acres of Ezril and Gertrude Horwitz designated as tax parcel no. 38-3-24; (3) 9.1 acres of Everett and Mary Sheeder designated as tax parcel no. 38-6-36; (4) 23.2 acres of Christopher and Kathryn Snyder designated as tax parcels nos. 38-2-23.1 and 38-2-23.2; (5) 19.2 acres of Dimitrius Zaferes, Joseph Ursini, and Paul Phillips designated as tax parcels nos. 16-1-40 and 16-1-40.3; (6) a .6492 portion of the 1.9653-acre property of Gary and Marie Hanna designated as tax parcel no. 38-2-23.2A; (7) a .1645-acre portion of the 1.6841-acre property of David and Linda Denbraven designated as tax parcel no. 38-2-23.2B; and (8)12 acres owned (and/or abandoned) by the Brandywine Railroad Company Inc.; the Consolidated Rail Corporation; and/or the Norfolk Southern Railroad and designated as tax parcel no. 38-3-25.

(60) A

summary of the properties authorized for acquisition by ordinance no. 1132-2000 is also admitted into this record as exhibit “Saha-43” in which the aggregate area of all of the properties (including the 110 acres previously acquired and the 41.5466 Saha condemnation) is calculated to be 233.1356 acres.

(61) About 160 acres are required for a desirable 18-hole golf course. Since about 30 acres of the overall tract are unusable for this purpose on account of topography, narrowness, and adjacent uses, a gross tract area of 190 acres would be required.

(62) About 30 acres are required for the golf training facility including a building for indoor functions, the nine-hole executive course and a driving range. This record does not support the conclusion that the 30 acres deemed unusable for construction of the 18-hole, 6,500-yard, golf course are also, in whole or in part, unusable for location of the golf training facility.

(63) Following enactment of ordinance no. 1132-2000, a sketch plan, dated July 26, 2000, was prepared under the auspices of the John Cooke Golf Design Group; entitled “First Tee of Coatesville — conceptual” and depicting the use of all of the Sahas’ lands excepting only exception tract no. 1 for golf-related activities including a bi-directional driving range and holes five through nine of a nine-hole, executive (par three) golf course. This July 26,2000 plan is the earliest document of record depicting the use proposed to be made of the lands condemned from the Sahas.

(64) On August 2,2000, the city filed a declaration of talcing, thereby condemning a portion of the Saha property, as authorized by the ordinance. No other property or property interest was condemned pursuant to this declaration of taking.

(65) Paragraph six of the declaration of taking describes the purpose for which the condemnor has exercised its power and is as follows: “[t]he property has been condemned by the City of Coatesville for the purposes of creating and establishing a public golf course and related facilities and other recreational uses comprising a regional, family, recreational complex, as provided for in the ordinance.”

(66) By official statement dated November 21, 2000, the city announced its series of 2000, general obligation bonds in the amount of $5 million.

(67) The official statement describes “the project” which is the “purpose of the issue” in the following terms: “The city is moving forward on its regional, family, recreational complex which will provide recreational facilities to southwestern Chester County. Located on 210 acres of land at the intersection of Routes 30 and 82, the complex design is based on an in-depth market research study of the region’s recreational needs. This research shows a great need for such a complex in this area.

Indoor recreational facilities will include batting cages, a two-rink ice-skating facility, bowling center and multiplex theater. Outdoor recreational activities include an 18-hole golf course, pro golf shop, driving range, miniature golf, boating and canoeing, pitch & putt course and go-carts. Indoor and outdoor rock climbing will also be offered. “(

a) Proceeds of the bonds, will specifically fund, among other things, the expenditures related to land acquisition and the golf course.”

(68) Following the interposition of preliminary objections filed by the condemnees pursuant to

section 406 of the Eminent Domain Code, the Act of June 22, 1964, PL. 84, as amended, 26 P.S. §1-406 which included a challenge to the authority of the city to condemn lands for the purposes specified, an amended declaration of taking executed by Mr. Carnes as city solicitor, and seeking to amend ¶6 of the initial filing so as to specify the purpose of the condemnation as the creation of “a public golf course and golf-related facilities,” was filed on February 13, 2001.

(69) To the extent that the zoning regulations of Valley Township were consulted by Messrs. Janssen and/or Dunlevy prior to October 2000, those regulations are found in exhibit “Saha-33” including the zoning map admitted as exhibit “Saha-33A”; and, with respect to consultations, if any, made prior thereto, the regulations are found in exhibit “C-16” including the Valley Township zoning map identified as exhibit “C-16” pages C006558, C006559, and C006560.

(70) The parcel excepted from the Saha condemnation, designated (and occasionally referred to hereinbelow) as “exception tract no. 1” on, inter alia, the condemnation plot appended to ordinance no. 1132-2000 as exhibit “F” and to the amended declaration of taking filed on or about February 13, 2001, as exhibit “C,” is shown with an area of 261,360 square feet or precisely six times the area of one acre (43,560 square feet).

(71) Exception tract no. 1 possesses no public road frontage, having road access only by means of a nonexclusive easement, 20 feet in width.

(72) Exception tract no. 1 does not include within its boundary either the Sahas’ existing source of potable water or the Sahas’ on-lot, subsurface, sanitary sewage disposal facility.

(73) By document dated February 22,2001, and styled “supplement to feasibility study” Carroll Engineering reports on the investigation performed following the completion of the initial feasibility study two years earlier with respect to the Saha property and its suitability for development as part of the proposed golf course and related recreational uses. We find this document to have been prepared as a litigation document after the interposition of the instant preliminary objections and at the express direction of the city’s special counsel and we accord it a weight commensurate to this origin.

(74) Additional factual findings together with citation to the record support therefor will be included in the following discussion where and as appropriate. DISCUSSION

Article 1,

Section 10 of the Pennsylvania Constitution provides, in pertinent part: “[n]or shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured.” The power of the Commonwealth to acquire private property for public use is said to flow directly from its attributes as a sovereign. See e.g., Peters v. Reading, 321 Pa. 220, 221, 184 A. 23, 24 (1936). The city’s eminent domain power, in contrast, is one of express delegation.

Municipalities of this Commonwealth have no condemnation authority apart from or beyond that made the subject of express statutory grant. We must also begin our analysis with a discussion of the jurisprudential limits on our inquiry, limits which have been variously described as “elementary” and “well-settled.” For example, in Blumenschein v.

Pittsburgh Housing Authority, 379 Pa. 566, 109 A.2d 331 (1954), cert. denied, 350 U.S. 806, 76 S.Ct. 68, 100 L.Ed. 724 (1955), involving a challenge to a condemnation by the housing authority of the City of Pittsburgh as part of a two-year program for the development of 5,000 dwelling units of low-rent public housing, the court wrote the following: “By a host of authorities in our own and other jurisdictions it has been established as an elementary principle of law that courts will not review the actions of governmental bodies or administrative tribunals involving acts of discretion, in the absence of bad faith, fraud, capricious action or abuse of power; they will not inquire into the wisdom of such actions or into the details of the manner adopted to carry them into execution.

It is true that the mere possession of discretionary power by an administrative body does not make it wholly immune from judicial review, but the scope of that review is limited to the determination of whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency’s duties or functions.

That the court might have a different opinion or judgment in regard to the action of the agency is not a sufficient ground for interference; judicial discretion may not be substituted for administrative discretion.” Id. at 572-73, 109 A.2d at 334-35. (footnotes omitted) (emphasis in original) To the same effect, see Faranda Appeal, 420 Pa. 295, 300, 216 A.2d 769, 771 (1966). In Eways v.

Board of Road Supervisors, 422 Pa. 169, 171, 220 A.2d 840, 841 (1966), the court repeated “the well-settled proposition that in the absence of bad faith, fraud, capricious conduct or abuse of power, courts will not interfere with the acts of governmental or administrative bodies involving the exercise of discretion. Faranda Appeal, 420 Pa. 295, 300, 216 A.2d 769, 771-72 (1966); Hyam v. Upper Montgomery Joint Authority, 399 Pa. 446, 455-56, 160 A.2d 539, 545, cert. denied, 364 U.S. 288, 81 S.Ct. 50 (1960); Eways v. Reading Parking Authority, 385 Pa. 592, 597, 124 A.2d 92, 94-95 (1956); Blumenschein v.

Pittsburgh Housing Authority, 379 Pa. 566, 572-74, 109 A.2d 331, 334-35 (1954), cert. denied, 350 U.S. 806, 76 S.Ct. 68 (1955). The wisdom of such action or the details of the manner adopted to carry them into effect are matters into which courts will not inquire.” It is equally well-established that “preliminary objections constitute the exclusive method of challenging condemnation proceedings under the new Eminent Domain Code . . . Mahan v.

Lower Merion Township, 418 Pa. 558, 212 A.2d 217 [(1965)].” Faranda Appeal, 420 Pa. 295, 297, 216 A.2d 769, 770 (1966). (emphasis in original) “Preliminary objections in the context of eminent domain actions serve a very different purpose than preliminary objections filed in other civil actions under the Rules of Civil Procedure. ... In eminent domain cases, preliminary objections under [Eminent Domain Code]

section 406[] serve a broader purpose and are intended as a procedure to resolve expeditiously the factual and legal challenges to the declaration of taking before the parties move to the second distinct proceeding for determining damages....

Section 406(

e) of the Eminent Domain Code, 26 PS. § l-406(e), provides that the trial court should promptly determine all preliminary objections and make the appropriate orders and that ‘[i]f an issue of fact is raised, the court shall take evidence by deposition or otherwise.’ ” North Penn Water Authority v. A Certain Parcel of Land, 168 Pa.

Commw. 477, 485-86, 650 A.2d 1197, 1201 (1994). (citations omitted) Our “clear and express duty” is to promptly determine all of the preliminary objections here interposed by the condemnees (Eminent Domain Code §406(e), 26 P.S. § 1-406(e); see Pittsburgh School District Condemnation Case, 430 Pa. 566, 575, 244 A.2d 42, 46 (1968)); a task that will necessarily involve an extended discussion in the light of the sheer number of objections raised and the breadth and complexity of the evidentiary record. In this regard, it must be presumed that the city performed its duties in good faith, Washington Park Inc.

Appeal, 425 Pa. 349, 229 A.2d 1 (1967), and the Sahas’ burden of proving fraud or abuse of discretion is a heavy one. Pittsburgh School District Condemnation Case, 430 Pa. 566, 575, 244 A.2d 42, 46 (1968). At the same time, however, statutory provisions conferring the power of eminent domain are in derogation of the right to own and hold private property and, therefore, must be strictly construed so as to guard against an unauthorized extension of the power.

Pittsburgh School District Condemnation Case, 430 Pa. 566, 570, 244 A.2d 42, 44 (1968); Condemnation of 110 Washington Street, Borough of Conshohocken, 767 A.2d 1154, 1158-59 (Pa. Commw. 2001); Appeal of Swidzinski, 134 Pa. Commw. 330, 333-34, 579 A.2d 1352, 1353 (1990); Speicher Condemnation Appeal, 58 Pa. Commw. 321, 326, 428 A.2d 282, 285 (1981); Golding Condemnation Case, 33 Pa. Commw. 635, 638, 382 A.2d 509, 511 (1978); Avery v. Commonwealth, 2 Pa. Commw. 105, 109, 276 A.2d 843, 845 (1971).

These presumptions and limitations on our role are firmly grounded in considerations of constitutional dimension having to do with the need to separate and hold in strict equipoise the powers of the branches of our tripartite government. Weber v. Philadelphia, 437 Pa. 179, 183, 262 A.2d 297, 299 (1970); Hatfield Township Appeal, 28 Pa. Commw. 109, 115 n.3, 367 A.2d 747, 750 n.3 (1977); Stubbs v. Snyder Township, 25 Pa. Commw. 613, 361 A.2d 464 (1976). As Mr.

Chief Justice Gibson wrote early in the history of this Commonwealth in the case reported as Borough of West Philadelphia, 5 Watts & S. 281, 283 [(1843)]: “It is on the preservation of the lines which separate the cardinal branches of the government, that the liberties of the citizen depend.” Pursuant to

section 406(

a) of the Eminent Domain Code, 26 P.S. §l-406(a): “preliminary objections shall be limited to... challenging (1) the power or right of the condemnor to appropriate the condemned property ...; (2) the sufficiency of the security; (3) any other procedure followed by the condemnor; or (4) the declaration of taking.”

Section 406(b), 26 P.S. §l-406(

b) requires prehminary objections to “state specifically the grounds relied upon.” The challenges here raised by the Sahas with respect to the city’s exercise of its power of eminent domain are the subject of some 28 sub-paragraphs of paragraph three of their preliminary objections. Two of these concern the ability or willingness of the city to offer just compensation; a subject inappropriate for consideration in this context. As the court wrote in Roudebush v.

Meadville, 241 Pa. 261, 265, 88 A. 446, 447 (1913): “It has been long held that it is not essential that the damages shall be actually determined or paid before the appropriation of the land; no more is it necessary that the money shall be set apart. The legislation upon the subject gives a complete system for ascertaining and securing payment of the damages; this affords ample protection to all concerned ....” The leading case of Township of Chester v. PennDOT, 20 Pa.

Commw. 60, 63, 339 A.2d 892, 894 (1975) (emphasis in original), in which the township as condemnee “objected to the power and authority of the Commonwealth to condemn because it had not provided [in its legislative authority] for just compensation,” stands for the proposition that “it is clear that [Eminent Domain Code]

section 406,... preliminary objections are not the proper procedural device to mount such a challenge.” Id. at 65, 339 A.2d at 895. See also, Nordhoy, Ramsey Appeal, 119 Pa. Commw. 620, 625, 547 A.2d 867, 869 (1988). In In re Condemnation by Penn Township, York County, 702 A.2d 614 (Pa. Commw. 1997), the condemnee challenged the sufficiency of the $2.5 million bond posted by the condemnor as predicated on an improper and inadequate appraisal. Relying on Matter of Land in Borough of Centralia, 658 A.2d 481 (Pa.

Commw. 1995), petition for allowance of appeal denied, 542 Pa. 651, 666 A.2d 1059 (1995), as well as the express terms of Eminent Domain Code §403, the court held that the amount of security is irrelevant where the condemnor is a taxing body. The condemnor is deemed to have pledged its tax revenues and this adequately secures the condemnee’s ultimate award of just compensation for the taking. Accord Nordhoy, Ramsey Appeal, 119 Pa. Commw. 620, 547 A.2d 867 (1988); In re City of Scranton, 132 Pa. Commw. 175, 184-85, 572 A.2d 250, 255 (1990). The city possesses the power to tax.

The preliminary objections made the subject of paragraphs 3(

d) and (

e) are, on these bases, overruled. Sub-paragraphs 3(i), (j), and (

k) of the preliminary objections assert that the uses of land proposed to be conducted by the city on the Sahas’ lands taken in Valley Township will violate the zoning regulations of that municipality. This challenge is also improperly raised at this juncture. The issue of whether the regional family recreational complex will be, in whole or in part, violative of the regulations of the municipality in which it is located, may not be raised by the condemnees by preliminary objection.

As the court wrote in Thompson Appeal, 427 Pa. 1, 4, 233 A.2d 237, 239 (1967): “In other words the condemnees lack standing in this eminent domain proceeding to object to the taking on the ground that there may be a future legal or factual objection to the proposed use. See Upper Dublin Twp. Auth. v. Piszek, 420 Pa. 536, 218 A.2d 328 (1966).” To the same effect, in Simco Stores v. Redevelopment Authority, 455 Pa. 438, 443-44, 317 A.2d 610, 613 (1974), the court reasoned: “We have previously held that the scope of preliminary objections under [Eminent Domain Code]

section 406(

a) is to be limited. Commonwealth Appeal, 429 Pa. 254, 239 A.2d 343 (1968). It is the clear intent of

section 406 to dispose of challenges to the validity of a condemnation as soon as possible after the taking as evidenced by the fact that preliminary objections must be filed within 30 days after service of notice of condemnation. When the authority filed the declaration of taking, it was in full compliance with the terms of its authority and the condemnation was effective and valid as of that date.

The authority may take the land for an authorized purpose and subsequent legal or factual objections will not render that taking invalid.” In the case cited by the Thompson Appeal court, Upper Dublin Township Authority v.

Piszek, 420 Pa. 536, 218 A.2d 328 (1966), the condemnation was for the purpose of constructing a sewage treatment facility and the condemnee raised by preliminary objection an asserted prohibition contained in the zoning regulations of the municipality in which the facility was to be located. “Appellants finally assert that the taking is improper because the proposed use conflicts with the Springfield Township zoning ordinance, which zones this area for municipal uses.

Although decided by the court below, this question is not to be decided here, for the authority must initially go before the zoning board of the municipality of location of the land, as was required of the school district in School District of Philadelphia v. Zoning Board of Adjustment, 417 Pa. 277, 207 A.2d 864 (1965). The zoning determination, however, is not a requisite of an effective taking by the authority. The authority under

section 11 of the Act of 1945,[] as amended, may take land for an authorized purpose, and it may do this whether or not the use may in fact be made in the future because there is a legal or factual objection. Such an

interpretation is required in order to best utilize the two forums involved, avoid undue delay before compensation, and protect the authority in its long range plans which may envisage future uses and changing zoning laws.” Upper Dublin Township at 540-41, 218 A.2d at 331. On these bases, we overrule those preliminary objections challenging the proposed recreational use as in violation of the “host” municipality’s regulations. Sub-paragraphs 3(

q) and (

s) of the preliminary objections challenge the city’s actions as an unlawful delegation of governmental discretion to “administrative employees and outside consultants.” No argument or citation to authority is provided in support of this objection in the Sahas’ written presentation or was included in the extensive oral argument and, therefore, we must consider this challenge to have been, for these purposes, withdrawn. We must also reject the condemnees’ challenge based on the asserted violation by the city of its charter’s procedural requirements in the enactment of ordinance no. 1132-2000.

The condemnees first contend that the special meeting of city council conducted on June 13,2000, was not called by the presiding officer as required by charter §11.2-211. The record evidence, including, particularly, the affidavit taken by City Council President Stephon Hines on June 14, 2001, and admitted into the record of these proceedings as exhibit “C-36,” establishes the contrary.

The condemnees also assert that notice of the meeting was not “prominently posted at city hall” as required by the cited charter provision but, again, the overwhelming weight of the record evidence is otherwise as our factual findings make clear. The remaining objections present in various forms and particulars, challenges to the power or right of the city to condemn the Sahas’ lands and the reasonableness of the city’s decision to do so. As such, these objections fall within the limited purview of Eminent Domain Code §406 as further explicated by such authorities as Winger v.

Aires, 371 Pa. 242, 247, 89 A.2d 521, 523 (1952). These objections raise issues of great complexity and significance, the resolution of which will require an extended analysis. The particular issues raised within this general category include: (

i) a broad challenge to the power of the city to take land for the purposes here involved; (ii) a challenge to the power of the city to condemn for the purposes here involved lands like that of condemnees located outside of the city’s geographic boundary; (iii) a challenge to the instant purpose for the condemnation as unlawfully “private”; (iv) and in competition with other private enterprises; and (

v) a challenge to the necessity of the condemnation to serve the city’s lawful purposes. We will discuss these challenges in turn. The analysis must begin, of course, with an identification of the purposes for which the condemnees’ lands were here taken. In the initial declaration of taking filed by the city on August 2, 2000, the purpose of the condemnation is described in paragraph six in the following terms: “

(6) The property has been condemned by the City of Coatesville for the purposes of creating and establishing a public golf course and related facilities and other recreational uses comprising a regional, family, recreational complex as provided for by the ordinance.” The ordinance referred to, being the city’s ordinance no. 1132-2000 enacted June 26, 2000, provides no additional description of the purpose to be served by the condemnation.

The fifth introductory paragraph of the ordinance contains the only pertinent language in providing: “Whereas, The [sic] City of Coatesville desires to create a public golf course and related facilities and to establish other recreational uses .. ..” The city’s regional, family, recreational complex itself, including the “other recreational uses” to be there established, as is indicated above, has been authoritatively described in the following terms found in the statement of purpose for the city’s year 2000 issue of general obligation bonds which were intended to fund the initial planning, engineering, and legal costs related to the facility as well as land acquisition therefor: “Indoor recreational facilities will include batting cages, a two-rink ice-skating facility, bowling center and multiplex theater.

Outdoor recreational activities include an 18-hole golf course, pro golf shop, driving range, miniature golf, boating and canoeing, pitch and putt course and go-carts. Indoor and outdoor rock climbing will also be offered.” The city attempted to address in this litigation the ambiguities inherent in these provisions by filing, on February 13, 2001, an amended declaration of taking. No leave of court was sought or obtained prior to this filing and condemnees have strongly objected to this procedure.

The amended declaration of taking is limited paragraph six of the declaration set forth above, so as to read with respect to the condemnees, as follows: “

(6) The property has been condemned by the City of Coatesville for the purposes of creating and establishing a public golf course and golf-related facilities, as provided for by the ordinance.” Condemnees have moved to strike the amended declaration of taking on the grounds that: (1) the Eminent Domain Code contains no authority for such a filing under these circumstances; (2) no leave of court was sought or obtained; and (3) no formal action of city council authorized the filing.

The city responds that statutory authority can be found in Eminent Domain Code §l-406(e), that leave of court was not required, and that the initial declaration, by its express terms, authorized the amended filing. We will consider each of these responsive contentions in turn. At the outset, we do not agree with the city that Eminent Domain Code §406(

e) authorizes the amended filing here at issue. The statutory provision, within the context of the procedures applicable to preliminary objections, provides that “[t]he court may allow amendment or direct the filing of a more specific declaration of taking.” We read this provision as a description of the power of the court, specifying two alternative judicial responses to the filing of preliminary objections.

We do not find within this provision, authority of the condemnor, without judicial leave or direction, to file an amended declaration some five months after the interposition of preliminary objections to the initial declaration and during the period when the court has directed the parties to conduct evidentiary proceedings necessary to the resolution of issues raised by the initial responsive filing. The legislature, in enacting Eminent Domain Code §406, was certainly aware of the procedure, applicable to preliminary objections in civil actions generally, under Pa.R.C.P. 1028.

Indeed, the comments contained in the 1964 report of the Joint State Government Commission responsible for the draft Eminent Domain Code, indicate that “[s]ub-sections (b), (c), and (

e) were derived from the Pennsylvania Rules of Civil Procedure, Rule 1028, relating to preliminary objections in an action in assumpsit.” Pa.R.C.P. 1028(c)(1) provides, in pertinent part, that “[a] party may file an amended pleading as of course within 20 days after service of a copy of the preliminary objections.” Pa.R.C.P. 1028(

e) has required since the amendments of March 28, 1973, that amended pleadings otherwise must be filed within 20 days of notice of the order permitting the amendment.

Prior to these amendments and from the original adoption of the rule on June 25,1946, the court was required to specify in the order permitting or requiring the amended pleading to “fix the time within which it must be filed.” It is clear to us that if the legislature had intended to permit the filing of amended declarations of taking without leave of court, it would have provided for the same by express language similar to that found in Rule 1028 and would have strictly limited the period during which such amendment could be accomplished.

It seems equally obvious that the absence of such a procedure in Eminent Domain Code §406 is the reasonable product of the essential difference between the functions served by the initial pleadings in civil actions generally and in eminent domain matters in particular. The declaration of taking, unlike the writ of summons or complaint in civil actions generally, effects immediately on its filing the rights and interests of the parties, there and then transferring title to the condemned land from the condemnee to the condemnor.

It is to us entirely reasonable that the legislature would not include in the context of Eminent Domain Code §406 a procedure for unsupervised amendment of the declaration of taking. We also note that an unrestricted right of unsupervised amendment as is here claimed by the city would render uncertain in effect other provisions of the Eminent Domain Code.

As one significant example, Eminent Domain Code §408 permits the revocation of condemnation proceedings by the filing of a declaration of relinquishment but strictly limits the period of time in which the proceedings can be ended by this means to “one year from the filing of the declaration of taking . . . If the condemnor possesses the power to file, without judicial supervision, amended declarations many months after the filing of the declaration thereby amended, the one-year limit on relinquishment ceases to be meaningful.

The city has brought to our attention the opinions of other trial courts of this Commonwealth in which, under circumstances very different from those here presented, amendment of the declaration of taking has been permitted without prior judicial leave. The decisions cited do not address the arguments we have found controlling and, therefore, are not persuasive. Finally, we are aware that a number of courts, have permitted purely technical, nonsubstantive amendment of a declaration of taking to be made without formality and we have no quarrel with these authorities.

The amendment here at issue was designed to alter the court’s determination of the then pending preliminary objections.

It had the intended effect of eliminating from the uses to which the condemned land could be devoted: “Indoor recreational facilities . . . including] batting cages, a two-rink ice-skating facility, bowling center and multiplex theater [and] [o]utdoor recreational activities including]... miniature golf, boating and canoeing,... and go-carts [and] [i]ndoor and outdoor rock climbing . . . ." We do not consider this amendment, in the circumstances, to be properly categorizable as “purely technical and nonsubstantive.” Without leave of court, the amended declaration of taking, filed on or about February 13, 2001, was of no effect and we here grant with respect to it the condemnees’ motion to strike.

We are also in agreement with the condemnee that the filing of an amended declaration, just like the initial filing, required the affirmative, formal assent of the condemnor’s governing body, city council.

The condemnor contends that authority for the presentation to the court of an amended declaration of taking is found in the following language contained in ordinance no. 1132-2000 enacted following second reading on June 26,2001, and appended as exhibit “A” to the initial declaration: “Now, therefore, in accordance with the foregoing authority, the council of the City of Coatesville authorizes the city manager or other authorized party and the city solicitor to proceed with the amicable acquisition of such property and property interests identified in this ordinance and further authorizes the city manager or other authorized parties and the city solicitor to prepare and file with the appropriate court one or more declarations of taking to effect the condemnation of any or all of the properties and property interests identified in this ordinance and to take any other legal action necessary or desirable to acquire said properties and property interests for the purposes as set forth in this ordinance.” (emphasis added) We have no doubt that the language referred to is unrelated to the procedure here followed and, instead, was intended to authorize the city manager and solicitor to proceed as is described in

section 402(

c) of the Eminent Domain Code, 26 P.S. §1-402(

c) which is as follows: “Section 1-402. Condemnation; passage of title; declaration of taking ... “(

c) The condemnor may include in one declaration of taking any or all of the properties specified in the action by which the declaration of taking was authorized. The prothonotary shall charge one fee for filing each declaration of taking, which shall be the same regardless of the number of properties or condemnees included therein.” This provision permits a condemnor to proceed by means of a single declaration of taking (and payment of a single fee therefor) describing therein all of the properties the acquisition of which is necessary for the project.

This is the form of the city’s ordinance no. 1132-2000, which authorized the acquisition of the condemnees’ property along with the properties of A. Duie Pyle Inc.; Ezril and Gertrude Horwitz; Everett and Mary Sheeder; Christopher and Kathryn Snyder; Dimitrius Zaferes; Joseph Ursini, and Paul Phillips; Gary and Marie Hanna; David and Linda Denbraven; and the Brandywine Railroad Company Inc.; the Consolidated Rail Corporation; and the Norfolk Southern Railroad.

The language here relied upon, referring to “one or more” declarations of taking, empowered the city manager and solicitor to file a single declaration thereby condemning all of the properties described in the ordinance, or nine declarations — one for each of the properties condemned, or any permutation between these extremes.

In fact, the city filed the instant declaration describing only the property of the condemnees and has, by its manager and solicitor, expressed an intent to proceed against other properties which it has been unable to amicably acquire by separate filing(s), all as is expressly authorized by the “one or more” language of the ordinance and by Eminent Domain Code §402.

As we have indicated, however, the city here argues that the phrase “one or more” was intended not only to authorize the procedure we have described but additionally to empower the manager and solicitor to revise without limitation the substantive language contained in the declaration filed with respect to any particular property or properties.

Thus, as in this case, if city council, by ordinance duly enacted, condemns land for purposes that include a hotel and conference center, an ice-skating rink, and indoor and outdoor rock climbing, the manager or solicitor, acting on the strength of the “one or more” language without the involvement or assent of council and many months after the initial filing, may, it is here asserted, restrict by the filing of an amended declaration the purposes to which the condemned land may lawfully be devoted to those related to a golf course.

We do not believe that such a far reaching and unconstrained discretion on the part of appointed officials is the fair import of the legislative language to which our attention has been directed. The city’s charter vests the legislative power exclusively in city council. While city council is empowered to act by other means in other contexts, the power of eminent domain may only be exercised by ordinance, that is, by the formal legislative will of a majority of a quorum of council duly convened and casting a recorded vote following public notice, advertisement, and an opportunity for the citizenry to be heard.

A significant substantive alteration to legislative language previously considered can only be effected by re-advertisement and formal reconsideration by council. Even if the language of ordinance no. 1132-2000 could fairly be construed to contain a delegation to the city manager and solicitor of the power to change the purpose for which land has been condemned, such delegation would violate the city’s charter. This consideration militates strongly against the

interpretation here proffered, an

interpretation which fails to obtain support from the express language of the legislation in any event. For all of these reasons, we reject the city’s position that formal action of city council was not required to effect the amendment here made the subject of the amended declaration of taking filed on February 13, 2001. We recognize that this court, in the case reported as Chester County Water Resources Authority v. O’Brien, 17 Ches. Co. Rep. 193 (1969), directed the amendment of the statement of purpose contained in a declaration of taking challenged by preliminary objection.

No reason appears why we should not follow this precedent. The absence of authority of the condemnor in this case to file its amendment without judicial leave in no way diminishes the power and authority of the court to require an amendment, a power, as we have noted, found in the express language of Eminent Domain Code §406(e). We will, therefore, grant the Sahas’ motion to strike the amended declaration of taking filed on February 13,2001.

At the same time, however, in the order that follows, we will permit and require the amendment of the instant declaration so as to specify that the purpose for which the Sahas’ lands have been taken is limited to, and those lands shall be used for nothing other than as and for, a municipal golf course, a component thereof, or a facility directly ancillary thereto, such as a golf training facility under the auspices of and as a member of The First Tee National Association, which is, as we have indicated in the margin, an initiative of the World Golf Foundation dedicated to providing affordable access to golf, especially to youth of limited financial means.

Notwithstanding our resolution of this issue, we remain deeply troubled by the procedure here adopted by the city of enacting an ordinance which authorizes at one stroke and with one statement of general purpose, the condemnation of a number of properties to be devoted, along with other contiguous lands previously acquired by the city, to an overall project which includes uses of land for which the city has been granted the power of eminent domain and other uses for which the city, concededly, has no such power.

The inherent ambiguities created by this procedure are only compounded by the state of the record as it relates to the location of particular land uses in the overall proposal.

Each of the witnesses who testified on behalf of the city made clear, and the city continues to assert, that none of the plans produced thus far with respect to the location of components of the regional family recreational complex can be considered “final” in any respect, and that no part of the layout or arrangement of uses is “cast in stone.” This state of the record permits the city to defend against the preliminary objections filed by any particular condemnee by asserting that the lands of that condemnee will be devoted to uses at the center of the city’s condemnation power while the uses for which the city has no power or only a debatable power to take land will be located elsewhere, for example, on the lands previously acquired or on the lands of those condemnees with whom an amicable arrangement has been reached or for whom the period for the timely interposition of preliminary objections has expired.

It is even possible, if at some later juncture, when the plans have become “final” and the location of particular uses is “cast in stone,” it should turn out that condemned lands are devoted to uses outside of the city’s eminent domain power, that the city would then argue that no potential protestant remains possessed of standing. If the evidence here adduced by the condemnees had provided any support for a conclusion that the scenario just described was more than entirely hypothetical, we would not hesitate to condemn the practice by sustaining the objection and setting aside the condemnation.

Instead, the evidence appears to confirm that the condemnees ’ lands have been from the outset and continue to be contemplated exclusively for uses related to golf, including a First Tee training center, a driving range, and an executive, par three, nine-hole golf course. We will address the legitimate concern here raised by the condemnees by requiring that the city act in conformance with its representations of intent to this court and within its legitimate authority.

This determination also permits us to reject the condemnees’ challenge to the adequacy of the statement of purpose contained in the declaration of taking when measured against the mandate of Eminent Domain Code §405(c)(7). The statement of purpose as we will here require its amendment satisfies the statute. With this necessary analytic diversion, we return to our discussion of the condemnees’ challenges to the power or right of the city to condemn their lands for golf and golf-related uses as we will require the declaration to be amended.

As we have indicated, the city’s powers are derived from the Third Class City Code. Many of the provisions of the Third Class City Code concerning eminent domain have been repealed by the Eminent Domain Code, the Municipalities Planning Code, and the Judicial Act Repealer Act. The only provision of the Third Class City Code cited by the city or discovered by research which remains in effect and authorizes the city to condemn land for park purposes outside its geographic boundary is

section 3703 of the Code, 53 PS. §38703, the full text of which is as follows (with emphasis added): “Section 38703.

Acquisition of lands and buildings “Cities may enter upon, take, use, purchase and acquire, by gift or by the right of eminent domain, lands, property and buildings, for the purpose of making, extending, enlarging, and maintaining1 recreation places which shall consist of public parks, parkways, playgrounds, playfields, gymnasiums, public baths, swimming pools, or indoor recreation centers, may levy and collect such special taxes as may be necessary to pay for the same, and make appropriations for the improvement, maintenance, care, regulation, and government of the same.

Cities may designate and set apart for use for any of the purposes specified in this

section lands and buildings owned by such cities and not dedicated or devoted to other public use. Cities may also lease lands and buildings in such cities for temporary use for such purposes. Lands, property and buildings outside the limits of the city may be acquired in like manner for recreation places, and such lands may be annexed to the city, in the manner provided by this act for the annexation of territory to a city. In contrast, “recreation places” generally and without qualification are the subject of

section 2801 of the Code, 53 P.S. §37801 by which the city is empowered to condemn land within its boundary for this unqualified purpose. As it pertains to the condemnation of lands, without the city, however, the legislature defined the city’s power with greater care. The “recreation places” for which the city may condemn lands outside its boundary are expressly limited to “public parks, parkways, playgrounds, playfields, gymnasiums, public baths, swimming pools, or indoor recreation centers.” An

interpretation of 53 P.S. §38703, so as to permit the condemnation of lands outside the city as and for recreation places generally and without qualification, would render the language just quoted mere surplusage and of no effect. We are forbidden from adopting such an

interpretation. If, as the city here expressly contends, ice-skating rinks, batting cages, go-cart tracks, rock climbing facilities both indoor and outdoor, and multiplex movie theaters are all properly categorized as “recreation places” then the remainder of the statutory language may be ignored and

section 3703 of the Code creates with respect to extraterritorial condemnations, no greater or lesser power than was codified in

section 2801 of the Code with respect to the condemnation of lands within the city. In an attempt to give separate effect to each of these provisions, as we are required to do we are impelled to grant a narrower, more restricted and qualified scope to the power made the subject of Code §3703 than is found in

section 2801. The city’s position equates “recreation” with “entertainment,” as only this equivalence would permit the categorization of a movie theater as a place of recreation. This may be appropriate in the unqualified context of Code §2801 inasmuch as the noun “recreation” may properly refer to any diversion or amusement which “recreates” the mind, body, or spirit after toil.

However, in our view, the express content and form of Code §3703 requires redirection of the analysis to whether each of the proposed uses may be properly categorized as a public park, a parkway, a playground, a playfield, a gymnasium, a public bath, a swimming pool, or an indoor recreation center. Many of the uses contemplated as components of the regional family recreation complex defy such categorization.

We would be required to reject a contention by the city that it is empowered to condemn land outside of its boundary for every use here contemplated as a component of the regional family recreation complex, excepting only the hotel and conference center. The issue as we have reformulated it in response to the amendment to the declaration of taking which we will require, is whether Code §3703 authorizes the extraterritorial condemnation of lands for a golf course or directly ancillary facility.

As we will discuss in greater detail below in connection with the Sahas’ challenge to the “public” nature of the regional facility, in Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 221-22, 200 A. 834, 840 (1938), the court stated directly (albeit in obiter dicta) that “[t]he taking of land for a public golf course ... would be for a public use ....” Moreover, in Bernstein v.

Pittsburgh, 366 Pa. 200, 77 A.2d 452 (1951), the issue was whether the construction of an open-air auditorium by the city in its Schenley Park in order to lease the same to a private concern who would then charge admission for the presentation on summer evenings of light opera, could properly be undertaken under a restricted grant of the land “for the use of the people of Pittsburgh and the public as a public park ...

The court first holds that the project is authorized as a “public auditorium” within the intendment of a permissive provision of the city’s enabling legislation as it then was, writing: “The structure here planned is undoubtedly an ‘auditorium,’ which has been defined as any large room, hall or building more especially designed for use for lectures and dramatic and musical entertainments.

Moreover it is a public auditorium since the title and control of the use of the building remain at all times in the City of Pittsburgh; the Opera Association agrees that even during the summer months it will not interfere with the city’s use of the building for other public purposes when not actually in use for the operatic performances.” The court then engages in an extended exegesis of the meaning of the term “public park” within the context of the restricted grant; a meaning which, as the court emphasizes, is narrower in scope in that context than, within an enabling statute but, nevertheless, is sufficiently broad to encompass the contemplated auditorium.

As the court reasons: “[Wjhile it is true that, where land is conveyed by the owner to a municipality for park purposes, as distinguished from a situation in which the municipality itself purchases or condemns land and establishes a park thereon, the terms of the grant must be narrowly construed and the uses to which the land may be put correspondingly restricted . . . nevertheless, even under that rule of construction, the building of this open-air auditorium in Schenley Park would seem to come well within, and to be in no way inconsistent with, the purposes specified in the deed from Mary E.

Schenley as those to which the use of the land so conveyed was to be limited.... “What constitutes a ‘public park’ — its attributes and dominant characteristics — is very generally understood and must have been likewise understood by Mary E. Schenley. A public park may be defined as a tract of ground kept more or less in its natural state, or embellished by the planting of additional trees, and flowers, and devoted to the purposes of pleasure, recreation and amusement.

In ancient times the term ‘park’ was applied to an enclosed tract stocked with beasts of the chase, such as that described by Xenophon as belonging to Cyrus, King of Persia, but, as humorously pointed out by Mr. Justice Dean in Commonwealth v. Hazen, 207 Pa. 52, 57, 56 A. 263, 265 [(1903)], the ordinary citizen of today does not obtain his notion of a park from a reading of the Anabasis. In modem times the principal purpose of a park, namely, public recreation, is not limited to physical recreation but includes aesthetic recreation and mental and cultural entertainment as well.

While the entire park acreage or any substantial part of it cannot, of course, be built upon so as unduly to destroy the enjoyment of fresh air, sunshine and exercise, the erection within its borders of monuments, museums, art galleries, public libraries, zoological and botanical gardens, conservatories, and the like, is commonly recognized and accepted as being within the normal scope and ambit of public park purposes, and an open-air public auditorium comes within the same category as such other permissible structures____Nor is the propriety of the operation of enterprises of that nature within the park limits militated against by the fact that patrons may be obliged to pay for admission thereto; in Schenley Park itself there have been maintained for many years a public golf course, a restaurant in connection therewith, a swimming pool, tennis courts, a bowling green, a riding academy, and occasional flower shows, for the use of all of which, as also for boat rentals on the lake, charges have been exacted, and this without challenge by either the representatives of the Mary E.

Schenley estate or by her heirs, or any one else; the Phipps Conservatory, which also is located in Schenley Park, makes admission charges at certain times, and the same is true in connection with some of the entertainments given in Carnegie Music Hall which is a part of the Carnegie Free Library Building.” Id. at 205-207, 77 A.2d at 455. There can be little doubt that the “golf and golf-related” facilities here contemplated by the city are encompassed within the statutory authority to acquire land as and for public parks. To the same effect, the case reported as New Castle v.

Lawrence County, 353 Pa. 175, 44 A.2d 589 (1945), involved the scope of the General Assessment Law’s exemption from real estate taxation of “public property used for a public purpose” as well as those provisions of the Third Class City Code, including

section 3703 described above, as it then was, authorizing extraterritorial condemnation for the creation of public parks. Our Supreme Court described one of the facilities at issue in the following terms: “[t]he city had converted what had been the City Poor Farm, located in Shenango Township, about 3 1/2 miles from the city, into a municipal golf course, designating it as a ‘park, playground and recreation center.’...

The golf course is open to the general public, whether residents or non-residents of the City of New Castle, residents or non-residents of the township of Shenango, Lawrence County, where the course is located. Fees are charged just as in the use of any ordinary golf course privately owned.” Id. at 178-79,44 A.2d at 592. The other city facility made the subject of the litigation is described in the following terms. “The Cascade Park situation is somewhat different. This park adjoins the city, contains 74 acres and is improved with a number of buildings. It is used by approximately 200,000 persons a year.

Certain concession buildings are let on short term leases or licenses yielding about $3,790 annually, but the park is operated, as the finding states, ‘. .. at a definite loss to the city.’ ” Id. at 182, 44 A.2d at 593.

In holding both facilities to be exempt from taxation, the court reasoned as follows: “It is common knowledge that municipalities maintain public golf courses in their parks just as they maintain baseball diamonds, tennis courts, and playgrounds equipped with appropriate devices; it is also common knowledge that, frequently, reasonable charges are imposed, towards reduction of the general maintenance cost. The city has shown its right to immunity from the taxation complained of on the ground the property sought to be taxed is public property for public purposes within the statute.” Id. at 181, 44 A.2d at 593.

The court directly addresses the issue before us in holding that the “[pjower to purchase land for a public park includes power to purchase or create a golf course for municipal use ....” Id. at 178,44 A.2d at 591. (citations omitted) The condemnees here offer no contrary authority. We overrule the challenge to the city’s power under the Code to condemn the Sahas’ property for a municipal golf course and uses directly ancillary thereto. The presence of general statutory authority does not end the matter, however. Irrespective of the terms of the legislative grant of power,

Article 1,

Section 10 of the Commonwealth’s Constitution permits the condemnation of private property only where it is to be devoted to a public use; whatever the more specific description or categorization of that use. Pennsylvania Mutual Life Insurance Co. v. Philadelphia, 242 Pa. 47, 88 A. 904 (1913); Cain v. Aspinwall-Delafield Co., 289 Pa. 535, 137 A. 610 (1927).

The right of eminent domain does not authorize the government to take the property of one citizen for the mere purpose of transferring it to another, even for a full compensation, when the public is not interested in the transfer; such an arbitrary exercise of power would be an infringement of the constitution, as not being within the power delegated by the people to the legislature. Faranda Appeal, 420 Pa. 295, 216 A.2d 769 (1966); Pittsburgh v. Scott, 1 Pa. 309 (1845); Lamberton v.

Hogan, 2 Pa. 22 (1845); Ervine’s Appeal, 16 Pa. 256 (1851); Lance’s Appeal, 55 Pa. 16 (1867); Palairet’s Appeal, 67 Pa. 479 (1871); Borough of Big Run v. Shaw, 16 Pa. Commw. 623, 330 A.2d 315 (1975). The condemnees here contend that the golf course and related uses proposed by the city are not “public” in the sense required to support the exercise of the power of eminent domain because the uses are intended to operate at a surplus of revenues over expenses and in direct competition with private, commercial golf facilities in the region.

On this subject, the city’s manager testified that it is the city’s intent to operate the golf course and the golf-training facility so as “to generate additional funds beyond [their] co

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