Jun 26, 2018

A Possible Limit Coming In PA on the Use of Eminent Domain

A bill has been introduced in Pennsylvania that is intended to limit a governmental entity from condemning land that has been set aside as open space or green space. House Bill 2468 was introduced when a Pennsylvania school district considered condemning a portion of the Stoneleigh Estate in Lower Merion Township. The 42-acre Haas homestead was donated in 2016 to Natural Lands, a non-profit organization that preserves open space. In 2018, the property was opened as a nature preserve and public garden.

The local school district considered acquiring the property through eminent domain to build a new middle school. Eminent domain is a legal method by which the government may take private property for a public use. Governmental entities include the federal or state government, local municipalities, and school districts.

Open space refers to land that has been set aside to remain undeveloped. For example, open space may be included in land development plans as a set-aside for parks, playgrounds, or green space. Areas such as meadow or forest may be set aside to protect wildlife, or to protect water resources, while other open space may be set aside for recreation.

In Pennsylvania, there is no restriction on a governmental entity’s ability to condemn land with a conservation easement for open space. The newly introduced House Bill is intended to do just that. Representative Kamph learned about the school district’s consideration of using its condemnation power to take the estate for a new school. Together with House Representatives Toepel and Harper, he introduced a bill that seeks to make it more difficult for governmental entities to condemn land designated as open or green space within the Commonwealth.

H.B. 2468 does not ban the use of eminent domain when open space land is at stake. However, the bill provides that a government agency will be required to obtain approval from the court before it may use eminent domain to take open space. The court will be required to review the proposed taking, and it may approve the condemnation only if it is determined that there is “no reasonable and prudent alternative” to using the preserved land.

For those who argue that eminent domain is a tool the government wields too harshly, House Bill 2468 seeks to add a layer of protection to maintain open space in the Commonwealth. The intention is to have the bill sent to the Pennsylvania Senate for consideration in late-June.

By: Mark S. Cappuccio, Esq.

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