Editor’s note: This is the first in a four-part series.

The Eminent Domain Code

Pennsylvania’s Eminent Domain Code, 26 Pa.C.S.A. Section 101, codifies one of the most extraordinary and ominous powers of government—the right to condemn or, more simply, “take” private property by filing a declaration of taking under the code, which results in immediate transfer of legal title to the property to the government. Exercise of governmental police powers also may result in “de facto” takings or “inverse condemnations,” where, for example, zoning, environmental or other land use regulations or government roadway improvements have the effect of depriving the property owner of the full use and enjoyment of his land. See, e.g., Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (wetlands regulation impact on coastal lands); Nolen v. Newtown Township, 854 A.2d 705 (Pa. Cmwlth. 2004) (temporary moratorium on development); Harrington v. Department of Transportation, 792 A.2d 669 (Pa. Cmwlth. 2002) (PennDOT change in highway grade caused flooding on adjacent private property). While there is a process for judicial review of government condemnation, Pennsylvania’s Commonwealth Court has made it very clear that the review is limited. A court has “no power to substitute its discretion for that of the condemning entity, nor to correct mistakes in judgment. It is presumed that the officials have performed their duties in good faith …” See Swartz v. Pittsburgh Public Parking Authority, 439 A.2d 1254, 156 (Pa. Cmwlth. 1981). Where the governmental taking is not challenged, the issue then becomes the process for establishing just compensation that is set forth in Section 703 of the code. This article is the first in a series providing a general overview of the eminent domain process and the procedures set in motion when a declaration of taking is filed.

The Declaration of Taking

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