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PAUL E. HELMS v. CHESTER REDEVELOPMENT AUTHORITY (11/15/77)

decided: November 15, 1977.

PAUL E. HELMS, APPELLANT
v.
CHESTER REDEVELOPMENT AUTHORITY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Paul E. Helms v. Chester Redevelopment Authority, No. 12710 of 1974, Eminent Domain.

COUNSEL

James N. Robertson, with him Robertson and Bullen, for appellant.

Samuel M. Tollen, with him Tollen and Tollen, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers and Blatt. Opinion by Judge Rogers.

Author: Rogers

[ 32 Pa. Commw. Page 378]

The appellant, Paul E. Helms, filed a petition for the appointment of viewers pursuant to Section 502(e) of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. ยง 1-502(e), alleging a de facto taking of his property at 1336-40 West Ninth Street, Chester, Pennsylvania, by the Chester Redevelopment Authority (Authority). The Authority filed preliminary objections asserting that the appellant's petition failed to set forth any facts establishing a compensable injury or a condemnation. The Delaware County Court of Common Pleas, after a hearing, sustained the Authority's preliminary objections and this appeal followed.

The burden of establishing a de facto taking is on the condemnee and is heavy. He must prove the existence of exceptional circumstances which have substantially deprived him of the beneficial use and enjoyment of his property. Commonwealth's Crosstown Expressway Appeal, 3 Pa. Commonwealth Ct. 1, 281 A.2d 909 (1971). We believe that Mr. Helms did not sufficiently carry this burden.

Unfortunately, the court below did not make findings of fact. However, we can infer from its decision that any conflicts in the evidence were resolved in favor of the Authority. The record reveals that Helms owned the property referred to since 1927. He leased the premises to Chester AAMCO Transmission Company in February, 1966 at which time Helms claims he "first heard of something with reference to Chester Redevelopment Authority" that might affect his property. At some unspecified later time, a sign with

[ 32 Pa. Commw. Page 379]

    a map of the North Central Urban Renewal Area was erected near Helms' property. This map showed that the appellant's property was within the renewal project area but it could not be established that the Authority had designated appellant's property as one which would be condemned. At some time between 1970 and 1972, Chester AAMCO Transmission Company vacated the premises. Another tenant who had lived in a second-floor apartment on this property left in 1972 or 1973. The premises have not been occupied by any other tenants since that time and have been vandalized despite Helms' efforts to protect it. Helms has paid no property taxes since the time the property was vacated and has been notified that his property will be sold at a tax sale.

Although the testimony of witnesses is conflicting, there is evidence sufficient to support a finding that Helms was never told by the Authority that his property would be taken, and in fact, Helms' counsel was informed by the Authority in a letter dated September 14, 1973 that there were no plans to acquire Helms' property because no funds had been received for this purpose.

Helms contends that the actions of the Authority in generating publicity, holding public hearings, posting a map of the project near his property, and condemning other properties in his neighborhood constitute a de facto taking. We disagree and affirm the order of the court below sustaining the Authority's preliminary objections.

Helms was required to show that the Authority had substantially deprived him of the use and enjoyment of his property. Conroy-Prugh Glass Co. v. Commonwealth, 456 Pa. 384, 321 A.2d 598 (1974). While the record shows that Helms' property has been vacant for some time and that as a landlord, he has been without some use and ...


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