The Pennsylvania Luzerne County Court of Common Pleas recently upheld a condemnation of property for a “charter school.” In Bear Creek Township v. Riebel, decided June 2, 1011, Bear Creek Township condemned property that would ultimately be used for a “Pennsylvania Public Charter School.” The property owners alleged, among other things, that the taking violated the Pennsylvania Eminent Domain Code’s prohibition against condemning properties for “private enterprise.” That prohibition is found in Chapter 2 of the Code and was enacted in 2006 in response to the United States Supreme Court’s Kelo decision.
Although the challenge was based on Chapter 2 of the Code, the Court virtually ignored those provisions in its analysis. Instead, the Court applied cases prior to the enactment of Chapter 2 which analyzed the “public use” – also referenced as the “public purpose” – requirement of the Pennsylvania and United States Constitutions.
The Court ruled, “After careful review, this Court finds ample evidence by way of law, testimony and documentary exhibits, that the proposed Recreation/Charter School Project does primarily benefit the public and is for a public purpose.”
The property owners have appealed to the Commonwealth Court. It will be very interesting to watch this appeal to see how the Commonwealth Court will address the Code’s prohibition against condemning properties for “private enterprise.”