In re: Condemnation by the Borough of Hanover of Land and Interests in Land Owned by Hanover Public School District , 950 A.2d 373 (Pa. Commw. Ct. 2008).

A Borough does not have the authority to take public land or property.
Case Details:

On January 2, 2007, the Borough of Hanover (the “Borough”) filed a declaration of taking of property owned by the School District of the Borough of Hanover (the “District”) for the purpose of constructing recreational facilities.  The District filed preliminary objections.  The District had used the property for over eleven years for recreational purposes as part of the curriculum for students, and had previously submitted land development plans to the Borough to build a new school on the property. The District claimed the Borough’s purpose in the taking was to prevent the construction of a new school, which is an improper purpose.  Further, the District argued that under the Borough Code, the Borough does not have the power to take property used for public purposes.  The trial court sustained the District’s objections and found that the Borough did not have the power to take public property from another public entity, and is limited to taking of private property.

The Borough appealed arguing that they have the power to take public property as long as the taking does not materially impair the existing use and will not result in a detriment to the public.  The Court reviewed two previous cases, Marple Township v. Marple Newtown School District and In re Condemnation Proceedings by the Township of Lower Macungie.  The Court distinguished Marple Township because, in that case, the property was not being used for educational purposes and the Township had the authority under the First Class Township Code.  In Lower Macungie, the Township had the authority under the Second Class Township Code, and the Court found that the land in question was privately used as farmland and the character of the use was private.

The Commonwealth Court held that the Borough Code grants the authority only to exercise the right of eminent domain where private property is involved and expressly noted the lower court’s observation that “allowing one governmental body to seize land from another is tantamount to taking from the people in the name of the people, for the benefit of the same people from whom the land was taken.”

Date of Decision: 6/6/08

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