I am proud to say that our team scored a significant victory for a property owner outside of Erie, PA. We were retained by a property owner in Millcreek, PA to challenge a partial taking of its property for a proposed stormwater project. The property owner firmly believed that the project was ill conceived and would be harmful to the environment.
We challenged the project on 2 fronts. We challenged the taking by filing “Preliminary Objections” – the exclusive procedural means to challenge condemnations in Pennsylvania – and challenged the PA DEP permit for the project. The permit was suspended earlier in 2009 by the Environmental Hearing Board and we are waiting for further decisions.
An evidentiary hearing was held in December regarding our Preliminary Objections to the condemnation. We had numerous bases to challenge the condemnation. However, we initially focused on the fact that the condemnor did not have the authority to take all of the condemned property. Condemnors must have express statutory authority to exercise the power of eminent domain for the particular purpose of the project. The Court agreed that the condemnor did not have the requisite statutory authority.
There are a few lessons from this case. First, while most property owners do not have the money or energy to challenge a taking, it is not uncommon to have a defective condemnation. Condemnors must be very careful and condemnees must scrutinize the papers filed to condemn their property. Second, many projects can be attacked outside of the eminent domain proceedings. I am fortunate to work at firm where I have partners with expertise in virtually every area of the law. In this case, my environmental law partners were invaluable.