Villanova property owners fight Lower Merion School District over use of eminent domain

LOWER MERION >> A fight is brewing in Villanova over money and the Lower Merion School District’s use of eminent domain to take private property for playing field space.

Last week, attorney Michael Faherty, representing John A. Bennett and Nance Di Rocco as the owners of 1835 County Line Road in Villanova, filed preliminary objections to the school district’s plans to take their property through eminent domain.

In the filing, they are accusing the district of abusing the eminent domain law by sweeping in and grabbing the property when Villanova University had already made an offer to purchase the site. At the same time, they are also accusing the district of forcing them out of the property sooner if they fight the district’s eminent domain deal.

In response, the district said the owners were given a good deal in that besides getting more money than Villanova had offered they were also going to be able to live on the property rentfree until it is needed by the district in 2023. At the same time, since the district would own the land Bennett and Di Roicco would no longer have to pay property taxes.

The dispute goes back to December when the Lower Merion School District announced it was taking the

1835 County Line Road property along with a property at 1800 West Montgomery Ave. through eminent domain for playing fields to be used in conjunction with its planned middle school at

1860 Montgomery Avenue in Villanova.

According to last week’s court filing by Faherty, on Dec. 18, property owner Bennett along with Lower Merion’s real estate agent Stuart Dessner and Superintendent Robert Copeland met to discuss the status of the district’s possible purchase of the property.

Because he already had an agreement of sale with Villanova University, Bennett said he gave a copy of their agreement with Villanova to Copeland with the understanding that it would remain confidential.

Bennett also told the district that Villanova would pull out of the agreement if he were able to reach an agreement with Lower Merion, according to the court filing.

But instead, three days later the board of Board of School Directors for Lower Merion held a special Friday afternoon meeting and voted to take the property through eminent domain.

“In a press release published that same day [of the eminent domain vote] 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 Narberth, rather than enabling Villanova University to take the property off the tax rolls for its private development use…,’” according to the court filing.

On Dec. 21, Villanova’s attorney told the property owners about the district’s use of eminent domain and suggested the agreement of sale be terminated or that the closing date be pushed back to allow for the owners to reach an amicable agreement with the school district, according to the filing.

But then the property owners say they later learned that the reason for the districts quick condemnation was because the law prevents school district’s from taking property through eminent domain if that property belongs to any incorporated institution of learning, including Villanova University.

“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 Bennett’s 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,” according to the filing.

According to the district’s press release in December that was sent shortly after the board’s condemnation vote, Lower Merion would pay $9.95 million for the 1835 County Line Road property. The current owners would then be allowed to live on the property since construction on the site would not begin until 2023 since the new school would not be finished until 2022 and 7th and 8th graders would not be transitioned into the new school during the first year.

With the district telling the owners they could continue living at the property, in their court filing they are accusing the district of forcing them out if they failed to agree to the sale.

According to the filing, an attorney for the district told the owner’s attorney that if they did not agree to the school district’s purchase they would be without a place to live and would have to move out quickly. At the same time, their granddaughter who lives with them would no longer be able to attend the school district.

“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,” according to the filing.

Ken Roos, solicitor for the district, said the comments about the owners no longer being able to live on the property were taken out of context in that if they didn’t agree to the district’s eminent domain deal there would be no way for them to know what kind of agreement would be reached.

In addition, he said, as part of the agreement with the school district the owners were not going to have to pay rent on the property and since they would no longer own it they would not have to pay property taxes on the site.

Michael Faherty, attorney for Bennett, confirmed the district was willing to allow the owners to remain on the property rent free but added that it meant the district did not need the property and therefore doesn’t have the right to use eminent domain.

“That offer supports the position of my clients that the property is not needed for the approximate four or five years that they had offered the owners to stay on the property,” Faherty said. “If there was a current need then the district would not be in a position to make such an offer.”

In response to the preliminary objection, the district sent out a statement Friday afternoon.

“This month, the district was dismayed to receive notification from an attorney from an attorney representing Dr. Bennett and Ms. Di Rocco, stating that they are planning to go to court to stop the District from retaining title to the property. The attorney’s communication further stated that Dr. Bennett and Ms. Di Rocco wanted to go ahead with the sale of their property to Villanova. In the cover letter, the attorney wrote that his clients would, however, agree to a full resolution of their claim if the District agreed to ‘a quick sale for $12.9 million,’” according to a press release the district sent out Friday.

A call and email to a Villanova spokesman seeking comment were not returned Monday.

The dispute goes back to December when the Lower Merion School District announced it was taking the 1835 County Line Road property along with a property at 1800 West Montgomery Ave. through eminent domain for playing fields to be used in conjunction with its planned middle school at 1860 Montgomery Avenue in Villanova.