Appalachian Land & Conservation Services Co., LLC

Where Conservation & the Marketplace Meet

Appalachian Comments on Pennsylvania Eminent Domain Legislation

September 19, 2005

Honorable Jeff Piccola
Majority Whip, Pennsylvania Senate
171 Main Capitol, Senate Box 203015
Harrisburg, PA 17120-3015

Dear Senator Piccola,

The issue of eminent domain is important, and I am so pleased that you were quick to address the implications of the U.S. Supreme Court’s holding in the Kelo vs. New London case.  For so many reasons that holding was wrong law and bad policy, and it is important that Pennsylvania address the resulting issues promptly.

As someone who is active in several very different (and often mutually exclusive) facets of the real estate market, I would like to share some thoughts on eminent domain with you.  My comments are based on personal experience and observation from working with public agencies, land trusts, and private developers and landowners.




"Blight" Definition

Definition is too broad, leading to abuse of eminent domain power and unfair taking of private property

Strictly define blight; link it to local economic activity and rehab or development efforts by landowner

Appraisals and fair compensation

Appraised value is based on current use or local market activity, not on planned or intended use, which results in artificially low value and unfairly low compensation

Clarify appraisal standards.  Condemned property must be appraised according to intended use and landowners must be compensated fairly.

Appraisal standards

Unit rule and some other appraisal rules are arbitrary, strictly theoretical, and do not conform to empirical evidence against them, resulting in artificially low appraisals

Legally change appraisal standards, or at least allow for different valuations

Partial condemnation

Only a small part of a property may be condemned, but the taking may render the residual far less valuable or may eliminate a business value, which is patently unfair

Landowners must be compensated for loss of business value (where applicable), and for the net result or impact of a condemnation on the whole and residual property

Prior capitalization in redevelopment projects

(current owners)

Current landowners bought property long ago, and have in effect capitalized current redevelopment projects (at artificially low values), but they are unfairly compensated after condemnation

Give landowners the option of being a silent equity partner in any redevelopment project.  This protects landowners and will ensure that only highly valuable and clearly publicly beneficial projects move forward.

Procedure and process must be clear and structured.  Eminent domain must be the action of last resort, and transparent.

Procedurally deficient eminent domain actions lead government to wrongly label and then target innocent landowners.  Landowners who are trying to improve their properties should not be subject to eminent domain unless they are clearly doing nothing.

Better rehabilitation and redevelopment codes for inner cities, more historic tax credits, and low-interest loans are examples of how landowners can be improving their properties or trying to make progress.  Measure landowner performance.

Clear and high standard for using eminent domain

Aside from definition of blight, in general the standard for applying eminent domain is too loose

Tighten the standard to allow on projects that have a clear public benefit, like roads, schools, sewage treatment plants.  For-profit projects can proceed only in clearly blighted areas and where landowners are given the option to participate as equity partners, etc.

Need for creative use of eminent domain

Lack of creativity with eminent domain leads to unnecessary conflict and less than ideal results

Provide leeway for agencies to meet multiple goals simultaneously, e.g. condemn development rights on farmland adjoining a new road for scenic corridor, or condemn the land in fee for a scenic corridor

Eminent domain abuse is found across the spectrum.  Public agencies responsible for road building, public works, and wildlife habitat conservation all have eminent domain powers and have all abused to them at one time or another.  While at one time (1970s) it was the action of first resort for public land management agencies, resulting public and political reaction has limited that to only the most exceptionally significant cases.  Now, the abuse seems to be limited to agencies like PennDOT.  Additionally, in many cases PennDOT does not use its eminent domain powers intelligently.  For example, in recent bypass work, PennDOT has condemned the least amount of land it needs just for a road, but has orphaned significant portions of family farms and has left little scenic buffer along the new highways.  As a result, unsightly commercial development occurs adjacent to the highway and scenic vistas and scenic corridors that could have been preserved are lost (PennDOT can condemn development rights on a farm but leave the farming operation intact).

I hope that these comments are useful to you in your efforts to make eminent domain law more fair and less desirable.  Please feel free to contact me if you have any questions.

                                                             Yours truly,


                                                             Josh First       
                                                            President & CEO

cc:        Janet Milkman, President & CEO
            10,000 Friends of Pennsylvania

             Joel Burcat, Esq., Chairman, Environ. Div.
            Saul Ewing
Appalachian's president, Josh First, was actively engaged in getting this legislation passed for two-and-a-half years.  For more than a year he served as the coordinator of the Abandoned Mine Lands Campaign, and then spent more time drumming up grass roots support for the legislation as a member of the coalition and as a contractor for the Pennsylvania Environmental Council.  "I am proud to have worked closely with such a fine group from the environmental and coal field communities," said First.  "This is a win-win for both the environment and for coal operators, who will now get the support they need to aggressively re-mine abandoned mine lands and simultaneously reclaim them and beautify them."
Josh with Chestnuts
Josh with Chestnuts

Josh with Chestnuts

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