Penn Twp. family fights eminent domain: The Hanover PA Evening Sun, 11/21/06

By Ashley Adams

Dana Heston and her husband Bill are happy with their four-bedroom, two-bathroom brick home on the corner of York and Center streets in Penn Township.

The two say it is a perfect fit for their six children.

Over the eight years they've lived there, Dana said the family has made many improvements, such as building a garage out back and remodeling most of the inside.

But now they could lose their home to eminent domain.

The Hestons went to the Penn Township Commissioners meeting Monday night to get answers but left with nothing resolved.

"You guys haven't given us a time to discuss this issue," Dana Heston said. "We asked to be put on the agenda and you didn't do that. I deserve and we demand the right to defend ourselves and our home. You meet with the developers, but you won't meet with us."

Commissioner Joe Klunk said the public-comment portion of the meeting is not the appropriate time for a discussion with the commissioners. He told Dana and Bill Heston if they didn't have anything further to comment on, they should sit down so the meeting could continue.

Dana and Bill Heston left the meeting angry and upset.

Paul Burkentine of Burkentine & Sons Contractors Inc. is planning to build a development called Brookside Heights on a 40- to 50-acre tract of land to the rear of the Heston property. He has been working on the project for four years.

Burkentine said a traffic study performed during the planning process showed a signal light is needed at York and Center streets, right by the Hestons' home.

Burkentine offered to pay for the signal, which he said is needed because of the increase in traffic – not only from his subdivision, but from other subdivisions that have sprung up in surrounding areas in recent years.

Penn Township Manager Jeff Garvick said the need for a traffic light at the intersection of York and Center streets dates back to the 1970s. Garvick pulled out the township's comprehensive plan as proof.

"Traffic counts continue to increase," Garvick said. "This is not something we just pulled out of our hats."

Changes to the intersection would include adding left-turn lanes on York Street, widening Center Street to 34 feet and widening York Street to 35 feet. Because both streets will be widened, right-of-way easements at the intersection are needed.

So Burkentine went about the task of acquiring the necessary easements on all four corners of the intersection. He secured easements and rights of way on three out of the four corners.

"Everyone was good to work with, it just took time," he said.

The only property left to acquire is the Heston home.

Dana Heston said her family is willing to move, but they want the fair-market value for their home – something, she said, hasn't been offered to them.

Two years ago, she said, Burkentine came to the family, explained the situation and offered to buy the property for $160,000. He also offered to give the family another property he owned that's similar to their current house.

Dana Heston said her family was willing to take the offer, but it was suddenly taken off the table and another offer of $132,000 was given. Dana and her husband just laughed at that. Their home was last appraised at $161,000. They countered Burkentine with a new asking price of $350,000.

"This is our home," she said. "We want a fair price for it."

Since then, Dana Heston said, Burkentine will not answer her calls nor calls from the family's lawyer. As far as she is concerned, the deal is off.

But Burkentine said the final offer for the Heston home was between $160,000 and $165,000 and he has continued to try and negotiate over the past two years but the family isn't answering his calls.

So, as a last resort, Burkentine went to the township for help.

Garvick said the township was trying to stay out of the negotiations between the developer and landowner. But since an impasse has been reached, there is nothing else the township can do but take the property by eminent domain, he said.

"The commissioners are not happy about having to do this," Garvick said.

The Fifth Amendment to the U.S. Constitution gives the federal government the right to take private property for public use as long as just compensation is given. The due-process clause of the 14th Amendment allows a state or local government body to take private property with just compensation for the good of the public.

Garvick said the improved intersection at York and Center streets is sorely needed and a major benefit to the safety of the community.

"This signal is necessary in order for us to continue to grow as a township," Garvick said. "It is a matter of individual right versus collective good. Bill and Dana are great people. I feel bad."

But Dana Heston and her family are still mad. Their home is being taken and they blame Burkentine and Penn Township. Dana said someone needs to speak up against the township taking properties for the benefit of developers.

Burkentine, on the other hand, doesn't feel he deserves to get the blame.

"This is an off-site improvement we are offering to do," Burkentine said. "The big thing is that this is something being done for the safety of the community. We are helping the township by paying for this improvement."

Garvick said the commissioners have not voted on whether to approve an ordinance of condemnation for the house yet. Once that is done, the township will make an offer to the Hestons and proceed with the eminent domain.

"There are laws to handle this sort of thing," Garvick said. "We are going to let the laws handle this."

The Hanover PA Evening Sun: http://www.eveningsun.com