Eminent Domain and Takings

Act 45 of 2018 (which originated as House Bill 2468) provides that for most uses of eminent domain: "The orphans’ court shall review the proposed condemnation and approve the proposed condemnation only if the court determines there is no reasonable and prudent alternative to the utilization of the land subject to a conservation easement for the project."

Commonwealth Court case upholding the authority to take private property by a municipality because the property was identified on the official map as a location on which the township had proposed to build a park.

The public is investing substantial financial and other resources in conservation easements and the conservation and historic values they protect. Yet little has been written about who should be entitled to what when land encumbered by a conservation easement is condemned in whole or in part. This Article explores these issues.

This guide provides a basic review of the eminent domain law of Pennsylvania and the United States as it applies to conserved land and conservation easements. An 8-page guide.

On 12/27/07, the PA Supreme Court reversed a divided Commonwealth Court panel, ruling in Ephrata Area School District versus County of Lancaster, Borough of Ephrata, and Lancaster County Agricultural Preserve Board that the School District must secure consent of the County in order to obtain a right-of-way over privately owned land that is subject to an open space property interest vested in the County. To quote from the opinion: "This appeal presents a question of first impression: whether, under the Open Space Lands Act, 32 P.S. § 5001 et seq., appellee, Ephrata Area School District, must secure the consent of appellant, the County of Lancaster, in order to obtain a right-of-way over privately owned land that is subject to an open space property interest vested in the County. Overruling the trial court, a divided Commonwealth Court panel determined that consent was not required under Section 5011 of the Act in this instance, based on the fact that the County is not a fee simple owner of the property. Based upon the plain language of Section 5011, as well as the agreement granting the open space easement, we disagree and, therefore, reverse." The Pennsylvania Land Trust Association joined with the Lancaster County Agricultural Preservation Board, Lancaster Farmland Trust, Chesapeake Bay Foundation and others in working to attain this Supreme Court ruling. Both the majority and dissenting opinion are available for download.

A review of the recent court case, Middletown Township v. Lands of Stone, in which the Commonwealth Court upheld a 2nd class township's right to condemn land for open space.