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Kenneth G. Scholtz

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Chair, Workers’ Compensation Group

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Eminent Domain – Attorney Needed for Private Landowner Rights?

Kenneth G. Scholtz, kscholtz@tuckerlaw.com, (412) 594-3903

With billions in Federal infrastructure improvement funding set to pour into Pennsylvania in coming years, privately owned land across the state will be impacted by thousands of “public purpose” projects.  In terms of spending, these projects rival that of FDR’s New Deal and Eisenhower’s Federal Highway program.  With the recent passage of the Infrastructure Investment and Jobs Act, Federal funding will begin pouring in to states for overdue improvement of infrastructure.  Pennsylvania’s share of the funding is estimated to be almost $20 billion.  Funds will be used for projects including roadway expansion and improvement, bridge repair, storm water and wastewater treatment projects, and expansion and improvement of public transportation routes and airport upgrades.  The following estimates have been released by The White House as a listing of that which has been earmarked for Pennsylvania, for use over the next five years:

  • $11.3 billion for federal-aid highway apportioned programs and $1.6 billion for bridge replacement and repairs.
  • $2.8 billion over five years for public transportation systems
  • $171 million over five years to help expand the state’s electric vehicle charging network.
  • At least $100 million to get broadband internet connections built up in areas that lack them right now. Wolf’s office estimates 394,000 Pennsylvanians don’t have reliable internet access.
  • A share of $3.5 billion going out to states for “weatherization projects” aimed at lessening the impact from more intense storms that are developing because of climate change.
  • $1.4 billion over five years for water infrastructure projects, like replacing lead pipes and modernizing treatment plants.
  • $355 million over five years for airport improvements.

https://www.whitehouse.gov/wp-content/uploads/2021/08/PENNSYLVANIA_Infrastructure-Investment-and-Jobs-Act-State-Fact-Sheet.pdf

Shortly after the legislation passed, Pennsylvania then made national headlines when the highly-traveled Fern Hollow Bridge collapsed on the very same morning that President Biden was scheduled to speak in the region, touting the passage of the infrastructure investment legislation.  During this speech, the President confirmed that Pennsylvanians will benefit from billions in funding for roadway expansion, intersection improvement or other necessary right-of-way access for public transportation and water utility and storm water management.  We can assume and fully predict that a vast majority of these projects will impact neighboring private landowners. 

The Pennsylvania Eminent Domain Code, 26 Pa C.S.A. § 101, et seq. guarantees payment to private property owners as reimbursement for any government-backed project that results in a taking of land or other ownership rights.  Private landowners generally cannot preclude or limit the taking of their property, or other infringement on their rights; they can however, collect monetary damages and reimbursement of attorneys fees.  Though the right of the government to take property is, for the most part, unfettered, the procedure that must be followed – to carry out a legally valid and enforceable taking of property – is subject to the restrictions and requirements of the Eminent Domain Act, and Pennsylvania Rules of Civil Procedure (as utilized by the Court of Common Pleas). 

The process for taking of private property usually begins with private landowners receiving an offer to purchase, or other “notice of taking” in the mail; this generally happens months before the government agency files the necessary Court documents to commence the formal process of taking property.  In some instances, especially when larger projects are planned, state agencies (like PennDOT or the Pennsylvania Turnpike Commission) will schedule informational meetings or “walk-throughs” with property owners.  Compensation payments to landowners must be made, and drawings/plans must be exchanged, before work is commenced.  But again, landowners have virtually no right to challenge or limit the impact of the taking on their property. 

Before the taking occurs, negotiation of fair compensation is something a landowner can attempt to engage in on their own, or through an experienced attorney.  Landowners should also note that, acceptance of a compensation payment – without an executed formal settlement document – does not necessarily extinguish all rights, or recovery of money damages, in the context of the law.    

If you have questions regarding government taking of your property, please call or email Ken Scholtz (412) 594-3903, kscholtz@tuckerlaw.com

February 21, 2022

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