In re Condemnation Proceeding by Lower Macungie Township

74 Pa. D. & C.4th 112, 2005 Pa. Dist. & Cnty. Dec. LEXIS 116
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedJune 17, 2005
Docketno. 2004-C-2865
StatusPublished

This text of 74 Pa. D. & C.4th 112 (In re Condemnation Proceeding by Lower Macungie Township) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Condemnation Proceeding by Lower Macungie Township, 74 Pa. D. & C.4th 112, 2005 Pa. Dist. & Cnty. Dec. LEXIS 116 (Pa. Super. Ct. 2005).

Opinion

JOHNSON,.J,

The condemnor Lower Macungie Township (the condemnor) filed a declaration of taking (declaration) along with a notice of condemnation and notice of the filing of declaration of taking against property of Landston Equities LLC (the condemnee) located in Lower Macungie Township, on October 19, 2004.

Before the court for consideration are the preliminary objections of the condemnee to the condemnor’s declaration filed on November 19, 2004. Argument was held [114]*114on this matter on May 18,2005, at which time the court heard arguments from counsel for both parties regarding the preliminary objections. The court will address each of the preliminary objections seriatum below.

I. PRELIMINARY OBJECTIONS

A. The Condemnor Exceeded the Authority Granted by the Legislature in the Second Class Township Code To Condemn Property and Violated the Pennsylvania Constitution When It Acted To Condemn the Subject Property for Open Space Purposes

The Legislature granted to townships of the second class, such as Lower Macungie Township, by way of the Second Class Township Code, 53 P.S. §65101 et seq., (the Code) authority to act on certain issues of concern to such a township. It intended, with limited exceptions, that the Code “shall furnish a complete and exclusive system for the government and regulation of townships.” 53 P.S. §65103(b). Among the provisions of the Code is section 2201, which authorizes the condemnor, through its board of supervisors, to acquire land or buildings “by the exercise of the right of eminent domain for recreational purposes.” 53 P.S. §67201. The condemnor relied on this provision of the Code, in combination with the general Code provisions on eminent domain found at 53 P.S. §68401 et seq., to justify condemnation of the property. Declaration ¶5 at 2.

The condemnee argues that the condemnor went beyond section 2201 when it explicitly condemned land for open space purposes, as none of the Code provisions [115]*115permits a condemnation by a second class township for open space purposes. Resolution 3rd, 4th 5th, and 6th recitals and ¶1 at 1,2; Declaration ¶5 at 2. The condemnor argues that it is expressly authorized pursuant to section 2201 of the Code to condemn property for recreational purposes and that recreational land is so intertwined with the additional benefit of open space that it makes a distinction between recreational land and open space impossible.

The court does not agree with the condemnor’s argument. If the Legislature had intended to grant the authority to condemn open space to a second class township, it knew how to provide that authority. Since the Code is devoid of that grant of authority, the court will not imply it. Olson v. Whitpain Township, 141 Pa. Commw. 270, 276, 595 A.2d 706, 709 (1991) (en banc) (previous provisions of the Code did not permit condemnation for recreational purposes and no implication of such authority permitted). A distinction exists between recreational purposes and open space purposes. The condemnor itself recognized the existence of the distinction when it condemned the property as and for recreation land and open space. See Resolution ¶1 at 2.

The court finds that the condemnor’s distinction is appropriate, as the Legislature provided separately for condemnation of open space and for recreational land, with the Code granting the authority to condemn land only for “recreational purposes,” 53 P.S. §67201, and expressly addressing open space in the Open Space Lands Act, 32 P.S. §5001 et seq. (Open Space Lands Act). An intermingling of open space and recreational purposes would misapply the law by deviating from the strict construe[116]*116tion of a power of eminent domain and implying a power not granted by the Legislature to the condemnor. Therefore, the court will grant this preliminary objection.

B. The Condemnor Violated the Open Space Lands Act and the Pennsylvania Constitution When, Despite the Prohibition in the Act Against Condemnation by a Township for Open Space Purposes, It Expressly Condemned the Property for Open Space Purposes

The Legislature addressed the acquisition of lands for open space uses in the Open Space Lands Act and expressly prohibited a local government unit such as the condemnor from acquiring open space through the exercise of the power of eminent domain. 53 P.S. §5002(5)(iii) (definition).

The condemnee argues that, through the subject resolution and declaration, the condemnor clearly expressed its intention and purpose to condemn all of the 103.83 acres of the Leister Farm for open space when it used the phrase “acquire, appropriate, take and condemn as and for... open space,” explicitly violating the Open Space Lands Act and therefore the Pennsylvania Constitution, which expressly states that no private property may be taken or applied to public use without authority of law. Resolution ¶1 at 2; Pa. Const. Article 1, Section 10.

The condemnor argues that it condemned the property for a public use (i.e., recreational park) pursuant to its express grant of statutory authority in sections 2201 and 3401 of the Code, not for open space as provided by the Open Space Lands Act. It further argues that recre[117]*117ational land is so intertwined with the additional benefit of open space that it makes a distinction between recreational land and open space impossible because open space is a natural element of a public park, noting that, as recently as 2003, even the Commonwealth Court has acknowledged that open space is a logical element of a property’s use as a public park. In re Condemnation of Lands of Laughlin, 814 A.2d 872 (Pa. Commw. 2003).

The court, however, is not convinced by the condemnor’s argument and finds that “open space” is a term of art that is governed by the Open Space Lands Act. Therefore, the condemnor violated the Open Space Lands Act and the Pennsylvania Constitution when, despite the prohibition in the Act against condemnation by a township for open space purposes, it expressly condemned the property for such a purpose. Therefore, the court will grant this preliminary objection.

C. The Open Space Lands Act Removed the Ability of the Condemnor To Condemn Property Under the Second Class Township Code for Recreational Purposes When Such Condemnation Actually Would Constitute a Condemnation for Open Space Purposes

The Legislature first enacted the Open Space Lands Act in 1968. By amendment in 1996, it brought local government units within the coverage of that Act. S.B. 1320, 1995 session (1996). Section 5001 of the Open Space Lands Act now expresses an intention “to clarify and broaden the existing methods by which the Commonwealth and its local government units may preserve land in or acquire land for open space uses.” 32 P.S. §5001 (statement of legislative intent).

[118]*118The condemnee argues that through the addition of local government units, the Legislature explicitly restricted the ability of local government units to utilize the power of eminent domain to achieve open space purposes. 32 P.S. §5008(b). See also, S.B. 1320, 1995 session, §3 at 12 (1996).

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Related

Olson v. Whitpain Township
595 A.2d 706 (Commonwealth Court of Pennsylvania, 1991)
In Re Condemnation of Lands of Laughlin
814 A.2d 872 (Commonwealth Court of Pennsylvania, 2003)
Speicher Condemnation Appeal
58 Pa. Commw. 321 (Commonwealth Court of Pennsylvania, 1981)

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Bluebook (online)
74 Pa. D. & C.4th 112, 2005 Pa. Dist. & Cnty. Dec. LEXIS 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-condemnation-proceeding-by-lower-macungie-township-pactcompllehigh-2005.