Eminent domain: Shades of big brother: Bucks County (PA) Courier Times, 5/31/05

By Courtney Dentch

The primary election may have cost one Nockamixon family their home.

The township has been eyeing 11 acres on Route 611 to expand its park space, and has discussed taking the land through eminent domain. But with three of the five supervisors against that plan, the house was safe.

Now that one of those three, Supervisor Al Santopietro, lost the Republican primary in his bid for re-election, the odds may have changed for Larry and Joan Comly, who have lived there for 12 years.

"We talked about condemning it," Santopietro said. "I think they're leaning toward taking this guy's property."

Eminent domain cases - where governmental bodies take ownership of land parcels for public use in exchange for just compensation - are not common in Bucks and Montgomery counties.

But that's not much consolation to families like the Comlys. Homeowners in similar situations often say the prices offered for the property do not match the amount they could get in an open sale, said Steven Anderson, coordinator for the Washington, D.C.-based Castle Coalition, a grassroots organization that helps homeowners fight eminent domain claims.

"This is not a market transaction, this is not a willing buyer," he said. "They don't have to compensate you at the market value."

Eminent domain has become a widespread problem across the country, Anderson said. There are more than 10,000 threats or cases of condemnation a year in which the majority of the land is seized for private development, he said. Municipalities can OK eminent domain for private use if the area is blighted or if the proposed development is viewed as providing a public purpose, he said.

In the Comlys' case, and most of the local cases of eminent domain, the towns are seeking the land for public use - parks, sewer or road improvements, for example. The public uses are protected in the Bill of Rights, Anderson said.

"It doesn't make it any more palatable, but we do recognize that there are public uses that are covered by the Fifth Amendment," he said. "But it's a moral issue. The Fifth Amendment is part of the Bill of Rights for a reason. Property rights are part of the pursuit of happiness."

The Fifth Amendment says private property cannot be taken for public use "without just compensation." But without market demand to set a real-world price, offers are usually based on appraisals that fall below true market value, Anderson said.

"When negotiating, we take a lot of things into account," Anderson said. "It's not only the physical cost of the land, but the cost of moving and what the land means to the owners."

Over the past three years, the Nockamixon supervisors have been looking at the land around Veterans Memorial Park, at Marienstein Road and Route 611, to find a way to add parking, baseball diamonds and more to the park, said Supervisor Bruce Keyser. Through a friendly condemnation, by which the town offers to buy a piece of land rather than demanding it, Nockamixon purchased 11- and 57-acre tracts, Santopietro said. The Comly land is sandwiched between those parcels and the park.

The Comlys refused to comment on the situation, but a poster taped to a road sign outside their home last week said, "Kick us out for park expansion? Who's next?"

The township offered to buy the land, but the Comlys were not impressed with the $410,000 proposal, Keyser said. The figure came from the second of two appraisals on the property, Santopietro said. The Comlys paid $155,000 for the land and the three-bedroom house that sits on the property in 1993, according to county records.

"You can't get anything comparable for the same price," Keyser said. "These are people who have lived here for quite some time."

Earlier this year, the supervisors discussed taking the house by eminent domain - the town's plan to convert the land to park space falls under the law's acceptable public uses - but Santopietro, Keyser and Board Chairman Jim Litzenberger voted against it. Supervisors Henry Gawronski and Ken Gross were in favor of the proposal.

"The park does need more parking," Gawronski said.

But the outcome of the vote may change as the members of the board change. There are two seats available, and Santopietro lost his primary battle to Tom Keebler.

Fellow incumbent Keyser is also up for re-election, and he and Keebler will face Democrat Nancy C. Janyszeski in the November general election.

"If they get one more vote in this election ... they will take this house to extend the park," Keyser said.

Keebler said he doesn't know enough about the situation to make a decision, since most of the board discussions have taken place during closed executive sessions.

In Pennsylvania, homeowners can appeal the initial appraisals before a three-member panel composed of an attorney, a real estate agent and an engineer, said Herb Sudfeld, a real estate lawyer with Fox and Rothschild LLP.

They hear evidence on the property's value and determine a price. If the property owners are still dissatisfied with the value, they can appeal to the state court, he said.

That's what happened in one eminent domain case in 2001. New Britain seized 37 acres that had been in Edward Garabed's family for more than 75 years to turn it into passive parkland. The town paid about $400,000 for the Upper Stump Road land, but Garabed argued he had received offers of up to $3 million for the property. His appeals of both the eminent domain claim and the value of the land were denied.

In 2003, the Quakertown Community School District voted to condemn 9.5 acres in Milford to expand and renovate Pfaff Elementary School. The land was split between two property owners, and the school district paid $74,700 for 8.3 acres and $22,800 for 1.2 acres under the separate deals.

Souderton Township is looking to buy land on Main Street to add parking for the business district. If the landowners continue to refuse the offers, the supervisors could seek to condemn the properties. And in Franconia, the Souderton Area School District plans to use eminent domain to seize at least two tracts of land off Lower Road to build a new high school.

Despite the handful of local examples, eminent domain is not something that happens often in Bucks County, Sudfeld said.

"It's not like everyone's out there condemning property," he said. "They try to avoid it where they can."

But the threats of condemnation can be just as damaging as the process itself, Anderson said.

"A lot of towns say eminent domain is a last resort, but it's not. It's a first resort," he said. "If it's on the table you're literally not negotiating anymore. It's negotiating at the point of a gun."

Bucks County Courier Times: www.phillyburbs.com