Posted on February 19, 2012 by David Snyder

We Win De Facto Taking Case

I am often asked whether governmental actions can cause a taking even if the government does not formally initiate an eminent domain case. These cases are known as “de facto” or inverse condemnations and are difficult to prove. However, establishing a de facto taking can have substantial benefits. We recently were successful in establishing a de facto taking in Philadelphia.

Our client was in the process of developing a property for residential condominiums. It took substantial steps including obtaining architectural and engineering designs and lining up financing. PennDOT, however, targeted the property for a road project and announced in August, 2006 that it was going to condemn the property. PennDOT did not initiate a condemnation action until May, 2009. However, we alleged that PennDOT’s action destroyed any opportunity to develop the property for its “highest and best use” – condominiums – and caused a de facto taking.

After a two day hearing involving testimony of four experts and numerous fact witnesses, the Judge ruled that PennDOT’s actions constituted a de facto taking by December 2006. This has a significant impact on the case. For example, the property will now be valued as of December 2006 and not May 2009. PennDOT will also be required to pay professional fees (attorneys, experts, etc.) for the entire case.

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Posted on February 10, 2012 by Wendy Rothstein

PA Commonwealth Court Affirms Strict Necessity Requirement for Private Roads

PA Commonwealth Court recently found that a property owner was not entitled to a private road across a neighboring property since it appeared that the property owner was entitled to an easement by necessity across another property.

In In Re: Laying Out and Opening of: Private Road in Hazle Township, owners of a landlocked property petitioned the Court pursuant to the Private Road Act for a road across a neighbor’s property to connect to PA Route 309. The Board of View determined that the property owners were not entitled to a private road because they could assert an easement by necessity over another property. The Commonwealth Court held that it was proper for the Board of View to consider whether the property owners could assert an easement by necessity across another property other than the property which was the subject of the Petition to Permit a Private Road.

The Pennsylvania Commonwealth Court found “When reviewing a request to open a private road under the Act, we are cognizant that the Act is in the nature of eminent domain and, therefore, must be strictly construed.” The Court further found that while the Board of View cannot “quiet title and make a determination binding on the affected landowners as to whether an easement by necessity exists, it is not error for a Board of Viewers to consider whether it appears that an easement by necessity exists. The potential existence of such an easement is relevant to the question of whether a private road is strictly necessary.”
 

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Posted on February 5, 2012 by David Snyder

Philadelphia Taxpayers Intervene to Defend 18.1 Percent CLR

The Philadelphia’s Board of Revision of Taxes (BRT) recently decided to apply the County of Philadelphia Common Level Ratio (CLR)–which had been reduced by Pennsylvania’s State Tax Equalization Board (STEB) from 32 percent to 18.1 percent–to property values as certified by the City of Philadelphia’s Office of Property Assessment (OPA). Our firm filed a Petition to Intervene before the STEB in the appeal of the City of Philadelphia (the City) on behalf of approximately 173 Philadelphia taxpayer clients (taxpayers) who own property in Philadelphia and filed tax appeals. The taxpayers seek to intervene to ensure that the certified 18.1 percent CLR will be vigorously defended.
The suit alleges that if the CLR is altered by the STEB, the taxpayers will suffer a significant, adverse impact. If the petition is granted, the taxpayers intend to actively participate in this proceeding. We await the STEB’s ruling and will continue to monitor this important issue.
 

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