Citation:

Township of O’Hara v. Condemnation of an Easement and Right of Way
860 A.2d 1160 (Pa. Cmwlth. 2004)

Case Details:

A landowner of a property located in Fox Chapel Borough appealed the District Court decision that authorized O’Hara Township to condemn the property even though it was located outside of O’Hara’s border.

The officials of O’Hara Township, after realizing a sewage treatment facility was needed to service the residents in the township, enacted an ordinance that specified properties for the construction of a facility. The landowner’s property was within the area specified by O’Hara Township. Thereafter, Fox Chapel Borough and O’Hara Township entered an agreement for Fox Chapel Borough to build, operate and maintain a sewage treatment facility on the property specified by the O’Hara Ordinance. The facility would service residents from both townships. In return, O’Hara Township would share the costs of running the facility. O’Hara claimed that it was authorized by Fox Chapel to condemn the land pursuant to the agreement the two municipalities executed.

The landowner claimed that the condemnation was an unauthorized extension of O’Hara’s eminent domain powers under the Township Code, 53 P.S. § 57440(d) which authorizes a municipality to condemn lands, pursuant to a “joint sewer system,” only within its own borders. However, the court rejected this argument because there was no evidence on the record to establish the project as a “joint sewer system” because there was not a “joint sewer board,” which is called for in the statute. Not only did the facility lack a joint sewer board, the facility is not jointly owned, operated, or maintained.

The Court accepted O’Hara’s argument that it was authorized to condemn the property, pursuant to the contract, because of 53 P.S. 57403. That section of the Township Code authorizes municipalities, for the disposition of sewage, to enter contracts with other municipalities and condemn any lands within the limits of the other municipality for the construction of treatment facilities.

The landowner attempted to claim that Fox Chapel Borough did not authorize O’Hara Township to condemn the property because the contract did not explicitly state that O’Hara Township could condemn property located in Fox Chapel Borough. However, the Court rejected this argument because the agreement, notices, and declaration demonstrated that both Fox Chapel Borough and O’Hara Township anticipated the condemnation of the property. Thus, the court explained, Fox Chapel Borough had agreed to the condemnation of property within its own borders.

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