PennDOT has shown signs that it is pursuing property acquisitions for Route 422 projects in Berks and Montgomery Counties (PA). PennDOT published a notice on September 3, 2011 in The Pottstown Mercury newspaper that it intends to acquire property in Lower Pottsgrove (PA) Township for that portion of its 422 reconstruction project. Property owners are also receiving notices of potential acquisition for various other 422 projects.
After over a decade of planning, a $5.2 billion expansion of Philadelphia International Airport was approved by the Federal Aviation Administration. The project will require a significant amount of land acquisition in Philadelphia and Delaware County.
Those properties in Philadelphia could be acquired through the City’s power of eminent domain. However, airport chief executive officer Mark Gale stated that “We do not have eminent-domain power in Delaware County. We will try to voluntarily have a transaction with a willing seller.” His statement presumably is based upon a 2006 amendment to the Pennsylvania Eminent Domain Code which generally prohibits "extraterritorial" condemnations – i.e., condemnations beyond a municipality’s borders.
If your property is being considered for acquisition – either through a condemnation proceeding or amicably – you should know your rights and potential for compensation. It appears that this project will be a reality and should not be ignored.
Pennsylvania will receive $68.8 million and New Jersey will get $46.8 million in federal stimulus funds for housing redevelopment projects. These projects will include acquiring blighted properties. It is virtually certain that many will be acquired through the power of eminent domain.
Approximately $43.9 million will go to the City of Philadelphia. However, the City was seeking $58 million. The funding for Pennsylvania also includes $5 million for the City of Reading. New Jersey's funding includes $11.9 million for the Camden Development Authority, $14.1 million for the Camden Housing Authority and $20.8 million for the City of Newark.
The funds are included in $2 billion in grants awarded nationally by the Department of Housing and Urban Development under its Neighborhood Stabilization Program.
Los Angeles received the most of any city - $100 million. Chicago received $98 million and Phoenix $60 million.
New York’s highest court ruled on Tuesday that private property could be condemned for the “Atlantic Yards” project. That project involves, among other things, an NBA arena and 16 office and residential towers in Brooklyn. The properties were purportedly condemned to eliminate “blight.”
In Goldstein et al. v. N.Y. State Urban Development Corporation, the New York Court of Appeals upheld the condemnations in a 6 to 1 decision. The project was challenged, in part, on the basis that that since the condemned properties would ultimately be owned by private entities, they were not being condemned for a “public use.” The New York Constitution – as well as the U.S. and most state constitutions – provide that properties can only be condemned for a “public use.”
The Court rejected that claim ruling that projects eliminating blight satisfy the public use requirement and that the fact that the properties would ultimately be owned by private entities did not make the condemnations unconstitutional. This is consistent with the eminent domain law of most states and has been federal law since the 1950s.
The condemnations were also challenged on the basis that the properties were not truly blighted. The Court also rejected this argument and expressed the common belief among the judiciary that, other than in the most egregious cases, courts should not second guess the legislature’s decisions regarding the need for projects.
A copy of the opinion can be found at www.nycourts.gov/ctapps/decisions/2009/nov09/178opn09.pdf
The Battle over the taking of property for, among other things, an NBA arena and 16 office and residential towers in Brooklyn has moved to New York’s highest Court. The New York Court of Appeals decided to hear the challenge by property owners and tenants to the taking of their property. The parties are submitting briefs and the case - Goldstein et al. v. N.Y. State Urban Development Corporation - will be argued in Albany on October 14.
The properties are needed to construct the “Atlantic Yards Project” consisting of the Barclays Center Arena and 16 skyscrapers. The condemnees challenging the taking claim the use of eminent domain for Atlantic Yards violates the New York State Constitution.
Senate Majority leader Harry Reid is proposing to build power lines to carry renewable energy from remote places like solar and wind-power farms. The proposal would give the President authority to declare “renewable energy zones.”
States and the federal government would jointly develop “green” transmission plans for such areas. However, the proposal would allow the Federal government to use its power of eminent domain to take land and issue construction permits if a project were stalled or killed by state action. The proposal is expected to become part of a broader energy bill the Senate plans to take up in the coming weeks.
Planning for the last phases of the Marshalls Creek Bypass Project – which PennDOT now calls the “Marshalls Creek Traffic Relief Project” – continues. The project was put on hold in April due to funding issues. PennDOT held a public meeting in October to discuss the options for this phase of the project which can be viewed at www.marshallscreekbypass.com/index.cfm
PennDOT posted the following update on January 2, 2009 on its website:
Project Milestones Reached
• PennDOT submitted the Final Traffic Reports to FHWA on November 24, 2008.
• PennDOT submitted the Final EIS (Environmental Impact Statement) Re-Evaluation on November 26, 2008.
• The Kick-Off Meeting for Final Design was held on December 2, 2008.
• A meeting for the Section 106 Programmatic Agreement (environmental/historical compliance agreement) amendment was held on December 4, 2008, with FHWA, SHPO (State Historic Preservation Office), and PennDOT's District and Central offices.
• The Phase III Archaeology report was delivered to FHWA and PHMC on December 30, 2008.
• A Right-of-Way review meeting was held at the PennDOT District Office on December 30, 2008.
• The Park-and-Ride project bids were reviewed and there is an apparent low bidder (Leeward Construction of Honesdale).
• Core borings have begun and will continue through February 1, 2009.
Upcoming Project Milestones
• The Environmental Review and Permitting will continue to be the challenge when trying to advance the Design/Build contract.
• Rettew Associates is scheduling a preliminary meeting with the permitting agencies for the “bypass” portion of the project.
• The Dewberry Team continues to advance the Final Design.
• The next Bi-Monthly Coordination Meeting is set for January 13, 2009.
• Park-and-Ride lot construction to begin in the spring and last one construction season.
One of the new buzzwords these days is “infrastructure.” It is likely that Congress will enact an ambitious economic stimulus package soon after President-elect Obama is inaugurated. One important component will be funds that will be spent on “infrastructure” including roads and bridges.
State officials are drawing up plans for bridge and road improvements in anticipation of funds from a federal economic stimulus package. PennDOT has stated that they are confident that Congress will make money available for replacements and repair projects early next year.
PennDOT has a number of projects that have been stalled due to lack of funding. It is very possible that PennDOT will use an influx of federal funds for these projects. It is unclear at this point the extent to which the projects will involve acquiring property through the power of eminent domain.
Montgomery County Pennsylvania’s planning commission is considering a transportation program that could cost $150 million. The Commission recently met to discuss a county program that could involve local governments and the private sector paying for an improvement program for local roadways and bridges. The Commissioners stated that there have been repeated complaints from residents and businesses about traffic congestion.
According to reports, Commissioners appear to be committed to some type of program and are considering a few options. The most popular option includes a 10-year program that would involve over 70 projects. This option would require voter approval to borrow $150 million. One project example cited was widening Route 309 in Montgomery Township to six lanes between Upper State and North Wales roads along with adding turn lanes and reconfiguring accesses to businesses.
The planning board members said they hope to finalize a recommendation at the November 12, 2008 meeting and submit a proposal to Commissioners by the end of the month.
Billionaire oilman T. Boon Pickens has been actively promoting his energy plan. Pickens wants the private sector to build wind farms from West Texas to North Dakota and solar farms in the Southwest. This plan also contemplates obtaining easements through eminent domain so transmission lines can take electricity generated by wind and solar to other parts of the country. He compares these easements to the creation of the Interstate Highway system in the 1950s.
Pickens believes his plan will help eliminate the dependency of the United States on foreign oil. However, neither presidential candidate has committed to his proposal. Pickens has been meeting continuously with leaders from the government and private industry as well as the press to argue for his plan.
Northeast PA Board Rejects Transportation Funding Plan Due To Underfunding Of Marshalls Creek Bypass Project
The Marshalls Creek Bypass Project continues to create controversy. Last week, the Northeast Pennsylvania Alliance Board – known as NEPA – voted 13-7 during a special meeting to reject a four-year state transportation funding plan. The biggest reason it rejected that plan was because it lacked funding for the Marshalls Creek Bypass. According to press accounts, it is the first time in memory that officials recall the NEPA Board – or any other regional board that reviews transportation funding priorities in Pennsylvania – voting against adoption of a four-year funding plan. As the Pocono Record reported, “This has not happened before," said NEPA Alliance CEO Jeffrey Box. "It's reflective of the concern the NEPA Board has for numerous transportation projects in all our counties." The Pocono Record article can be found at www.poconorecord.com/apps/pbcs.dll/article
PennDOT has been planning the Marshalls Creek Bypass Project for many years. It is aimed to alleviate gridlock at the bottleneck of Routes 209 and 402 in Smithfield and Middle Smithfield townships, Monroe County Pennsylvania. It has been broken up into phases and has been put on hold while PennDOT redesigns part of the project. Stay tuned.
Funds for widening Route 202 on the section of the highway that runs from near Route 29 to the Exton Bypass will be delayed until at least 2011. The Delaware Valley Regional Planning Commission voted 17-1 to wait until 2011 to begin releasing the PennDOT funds needed to widen this section of the highway. PennDOT’s current plans for this section – known as “Section 300 – anticipate expanding from four to six lanes. It appears that this delay is another example of budget concerns being felt at PennDOT. PennDOT made a decision this year to focus its funding on projects involving bridge repairs.
Rendell has asked the General Assembly to approve this plan which he estimates will require state funding of an additional $200 million a year for three years, to be combined with federal road repair funds. The "structurally deficient" bridges include 91 in Southeastern Pennsylvania including 35 in Bucks County, 26 in Chester County, 15 in Montgomery County, nine in Philadelphia, and six in Delaware County. Most are smaller bridges.
It is unclear at this time whether the General Assembly will approve this project. According to press accounts, Senate Republicans acknowledged repairs were necessary but expressed reluctance to borrow more funds. This issue will likely by an important part of budget negotiations.
I represent some of the property owners that will be impacted by this project and spoke with a PennDOT representative about its plans. PennDOT still intends to go forward with the project. However, it is revisiting some of its plans to determine if there are ways to cut costs.
It appears that we will know more about PennDOT’s plans later in the summer or early fall.
Businesses and residential properties will be acquired for the project – either amicably or through the eminent domain process. I spoke with the outside consultant for the project who told me the acquisition for the project will be in about 2 years. However, we always counsel our clients to engage in “pre-condemnation” planning. This involves a number of potential actions including working with PennDOT to see if you can avoid losing your property. However, most planning involves taking steps to ensure that you receive the maximum payment for your property if it is condemned.