Pennsylvania Appeals Court Blocks Township’s Condemnation Of 188 Square Feet Of Private Driveway To Create New Traffic Intersection For Access To A Planned Strip Mall
April 25, 2023
By: Carl L. Engel
On April 24, 2023, the Pennsylvania Commonwealth Court, in the case In Re: Condemnation of the Township of Robinson of Certain Lands, reversed a trial court’s decision to allow a township to condemn 188 square feet of a business’s driveway for the purpose of creating a new intersection. The Commonwealth Court found that the testimony of the township’s commissioners had revealed that the primary purpose of the new intersection was to create access to a new strip mall to be developed on the adjacent property. Because the primary purpose of the condemnation was to benefit a private developer, it was therefore prohibited under the U.S. Constitution, the Pennsylvania Constitution, and the Pennsylvania Property Rights Protection Act. This case illustrates the limits of Pennsylvania municipalities’ authority to condemn property, and the remedies available to someone whose property has been wrongfully condemned.
E&R Partners LP owns a piece of real estate in McKees Rocks, Pennsylvania, which is a suburb of Pittsburgh. The parcel is located along Steubenville Pike and across from Tidball Road, where the two roads intersect at a T. In 2003, after the manager of E&R Partners had been involved in a motor-vehicle accident while pulling out of the property’s driveway, a traffic light was installed at the intersection.
On March 1, 2011, Michael Dunn purchased a 2.8-acre parcel located along Steubenville Pike to the west of E&R Partners, which he intended to develop into a strip mall. However, the property lacked direct access to Steubenville Pike. So, in mid-2015, Mr. Dunn submitted a land-development plan to the township that envisioned a private right of access from his property to Steubenville Pike at the intersection with Tidball Road. The township approved the plan on the condition that Mr. Dunn obtain a Highway Occupancy Permit from the Pennsylvania Department of Transportation (“PennDOT”). PennDOT refused to issue the permit, however, stating that Mr. Dunn could not put a private entrance immediately adjacent to E&R Partners’s signalized driveway, and that it would need to be a shared driveway.
Mr. Dunn and E&R Partners were unable to reach an agreement for a shared driveway, so, in 2016, the township began the process for obtaining PennDOT’s approval for a public road through Mr. Dunn’s property. Mr. Dunn fired his engineer and hired a new one, who suggested the possibility of the township condemning a portion of E&R Partners’s property to allow the intersection of Steubenville Pike and Tidball Road to be configured into a standard design that gave access to both properties. The new engineer suggested that 188 square feet of E&R Partners’s property would be necessary to complete the project.
On May 7, 2018, the township’s commissioners unanimously approved a resolution “to construct a new public road and signalization” on a portion of E&R Partner’s property. On May 11, 2018, the township filed a declaration of taking. On June 12, 2018, E&R Partners filed preliminary objections to the declaration, arguing that the taking violated the Takings Clause of the Fifth Amendment to the U.S. Constitution, the Pennsylvania Constitution, and the Property Rights Protection Act. Specifically, E&R Partners argued that the township was taking its property for the wrongful purpose of assisting Mr. Dunn with his private development of a strip mall.
On March 4, 2022, the trial court entered an order overruling E&R Partners’s preliminary objections, based on evidence that the township commissioners’ “primary reason for the taking of the property was to improve the safety of the intersection.” The trial court found further that E&R Partners’s suggestion that the township sought to assist Mr. Dunn with developing his private property was “speculation which cannot outweigh the direct credible evidence.”
E&R Partners appealed. The Commonwealth Court agreed with E&R Partners and reversed the trial court. The Commonwealth Court reasoned that the U.S. Constitution and the Pennsylvania Constitution both allow a government to take property only for a “public use,” and the Property Rights Protection Act restricted takings even further by allowing takings only where the public is “the primary and paramount” beneficiary of the condemnation. In other words, a condemnation cannot be made “under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.”
The Commonwealth Court found that the trial court’s decision to overrule E&R Partners’s preliminary objections was an abuse of its discretion, because the evidence on record did not support its conclusion that the primary purpose of the condemnation was safety. To the contrary, the commissioners had testified that the primary purpose had been the development of Mr. Dunn’s property into a strip mall. The Commonwealth Court, therefore, concluded that the condemnation, which had been conceived and initiated by Mr. Dunn’s engineer, had been done for his benefit.
As a result of the decision, E&R Partners’s property will remain undisturbed. However, because Mr. Dunn’s property is virtually worthless without access to Steubenville Pike, it is likely that he will appeal the decision to the Pennsylvania Supreme Court. Further, the Pennsylvania Supreme Court would be inclined to accept this case for review, because it touches on issues of the Pennsylvania Constitution and would allow them to issue black-letter law on condemnations in the Commonwealth. Until then, municipalities will face challenges in the wake of this decision, as private-property owners will be emboldened to contest takings that appear to be based merely on a public pretext.