Technical Assistance - Pennsylvania Land Use Law : PA Land Use

Key Topic: Takings

A First Class Township may condemn, for recreational purposes, property owned by a church and which was designated to be used as a cemetery.

In re Condemnation (St. Mary's Roman Catholic Congregation of Sharpsburg), 910 A.2d 166 (Pa. Cmwlth. 2006).

With the permission of the landowner church, a first class township built athletic and other recreational facilities on church property. Subsequently, the church decided to revoke the township’s permission to use the property because the church wished to use the land for cemetery or mausoleum purposes. In response, the township filed a declarations of taking to condemn the land for recreational purposes. The church filed preliminary objections, which were overruled, that the First Class Township Code did not expressly permit the condemnation of property owned by a church to be used for cemetery purposes and that such condemnation was against public policy. The church appealed.

The Commonwealth Court affirmed the trial court’s decision and concluded that the First Class Township Code expressly permits condemnation for recreational purposes and, unlike other municipal codes, does not expressly prohibit the condemnation of church or cemetery property for recreational purposes. Furthermore, the Commonwealth Court noted, it is not the job of the courts to make policy decisions or “supply [statutory] omissions,” which may or may not have been the case here.

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