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Shaner v. Township

Dismissal of defendant's preliminary objections to plaintiff's petition for an appointment of viewers affirmed because evidence indicated a de facto taking where defendant township deprived property owner of all lawful use of its property by refusing to issue occupancy permits to prospective tenants because of pending litigation concerning the paving of plaintiff's lots.

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Argued: April 4, 2001

Perry Township (Township) appeals from an order of the Court of Common Pleas of Berks County (trial court) which dismissed its preliminary objections filed in response to a petition for the appointment of viewers filed by Susan Shaner, Terry Shaner, Terry Shaner Jr. and Stephanie Shaner (Shaner) pursuant to Section 502 of the Eminent Domain Code. *fn1 We affirm.

Shaner is the owner of two improved parcels of real estate, Lot No. 6080 and Lot No. 6204, located along Route 61 in the Township. The surface of both lots is covered with a deep layer of stone, gravel and a partial macadam area. There are three other businesses located within a quarter mile with lots that are also covered in only stone and gravel. In March of 1988, the Township Zoning Hearing Board granted Shaner a variance to operate a gas station on Lot 6080. Shaner originally operated the gas station but in 1991 Shaner leased the gas station to Harjeet Birdi and Salio Kumar. In April of 1988, the Township Zoning Officer issued Shaner an occupancy permit to use the building located on Lot 6204 for commercial purposes and Shaner leased the commercial spaces to various tenants.

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