Who Can Take Private Property Using Eminent Domain in Pennsylvania

 As mentioned in another article at our website, the power of a government to take property is imbedded in both the Fifth Amendment of the United States Constitution, and our Pennsylvania Eminent Domain laws. The most frequent exercises of this power are commenced by agencies such as PennDOT and the Pennsylvania Turnpike Commission. 

However, a number of political subdivisions, public utilities and other authorities are also vested with Eminent Domain power. These include Municipalities, School Districts, certain Redevelopment Authorities and Public Utilities. 

1. Municipalities have the right to condemn land within their geographic borders. There are generally three types of municipalities, cities, boroughs, and townships. The condemnation process may differ slightly for each type of municipality, depending upon “class”. (For example, a Second Class Township may have procedures different than a Third Class City). Municipalities can have the power of Eminent Domain only if it is a Home Rule Municipality, one incorporated under its own unique charter created under the Home Rule and Optional Plans Law. 

2.  School Districts, through their respective Boards, have the power to condemn real estate that it may deem necessary to furnish school buildings or other suitable sites for proper school purposes. This power derives from our Pennsylvania   Public School Code at 24 P.S. § 7-703. Any exercise of this power may be challenged if the property is condemned based on fraud or “palpable bad faith” on the part of the school district. There must also be no “reasonably foreseeable use” for the property, the size of property taken cannot be “grossly excessive”, and the property cannot be taken for private purposes. 

3. The Eminent Domain power of certain Redevelopment Authorities derives from the Pennsylvania Urban Redevelopment Law (35 P.S. § 1701, et seq.). The underlying purposes of this law include promoting “elimination of blighted areas” and for “promotion of health, safety, convenience and welfare” of the citizenry. Redevelopment Authorities are deemed a “public body” exercising public powers as an agency of the Commonwealth, including the power to acquire property by eminent domain. 35 P.S. § 1709 (i).

The exercise of Eminent Power by Redevelopment Authorities is controversial to say the least, because the ultimate beneficiaries of the “taking” can include not only the public but private interests. This issue was brought into the spotlight in the United States Supreme Court case of Kelo v. City of New London, 545 U.S. 469 (2005). In the Kelo decision the Court essentially held that a local government can take “blighted” private property from one owner and give it to another private entity. 

In the aftermath of the Kelo case in 2005, many states initiated legislative reform in an effort to curb abuses of Eminent Domain powers. In 2006 the Pennsylvania General Assembly voted to enact “Property Rights Protection Act” (Senate Bill 881). Fortunately, this Bill provided for a narrowed definition of the term “blight” and prohibits the use of eminent domain “to take private property in order to use it for private enterprise.” The law also provides that agricultural property cannot be “blighted” unless the Agricultural and Condemnation Approval Board determines that the designation is necessary to protect the health and safety of the community.

4. Public Utilities can obtain Eminent Domain powers in some circumstances. Article X, Section 4 of the Pennsylvania Constitution designates Public Utility corporations as those that can be vested with the power of eminent domain, but only if that power is exercised for a public purpose.  The certification and regulation of public utilities in this state is vested in the Public Utility Commission (PUC). The Public Utility Code defines a “Public Utility” as “Any person or corporations now or hereafter owning or operating in this Commonwealth equipment or facilities for: …Transporting or conveying natural or artificial gas, crude oil, gasoline, or petroleum products, materials for refrigeration, or oxygen or nitrogen, or other fluid substance, by pipeline or conduit, for the public for compensation.” 66 Pa.C.S.§102(1)(v).

However, merely being subject to regulation by the PUC is insufficient for an entity to acquire Eminent Domain powers. The “public utility” must also obtain a Certificate of Public Convenience pursuant to 66 Pa.C.S.§1104.  The utility is required to submit a written application to the PUC, who may grant the Certificate of Public Convenience “ . . . only if the commission shall find or determine that the granting of such certificate is necessary or proper for the service, accommodation, convenience, or safety of the public.” 66 Pa.C.S.§1103(a).

Only after the PUC approves the Certificate may a public utility begin taking private property. Ordinarily this begins with the filing of a Declaration of Taking in the records of the county where the property is located and serving a copy of that Declaration upon the property owner. Landowners may file preliminary objections and take other measures to protect their right to just compensation pursuant to the Pennsylvania Eminent Domain Code.

In summary, it is not only the usual suspects like PennDOT and the PA Turnpike Commission that have the right to “take” private property by virtue of Eminent Domain law. With each governmental or quasi-governmental agency attempting to exercise the power, comes a variety of nuances that must be examined to properly protect any landowner’s rights under their unique set of circumstances. 

It’s never too soon to speak with us, but it can be too late. Even if you have been informally contacted by anyone discussing an acquisition of your land, contact us. If you have received a written notice, Estimate of Just Compensation (EJC) or an actual Condemnation notice, you must act now. We welcome you to read the several other articles about Eminent Domain available free on this website. Better yet, call us for a free consultation at 1-800-755-0245 or send an instant message through our website: http://www.puzaklaw.com. We look forward to helping you through this challenging time. 

IMPORTANT: Every case is unique in its facts and circumstances. This article is for general information purposes and is not intended as legal advice for any particular case. We recommend consultation with a lawyer of your choice who can perform a thorough analysis of your situation and the particular rights and remedies that may apply.

©David J. Puzak, Puzak Law Offices, LLC