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CONDEMNATION BY LOWER PAXTON TOWNSHIP LAND OWNED BY MARYA P. SPORY (09/17/80)

decided: September 17, 1980.

IN RE: CONDEMNATION BY LOWER PAXTON TOWNSHIP OF LAND OWNED BY MARYA P. SPORY, A/K/A MARYA P. MUMPER, JOHN HUGHS AND CHARLES H. GRAFF FOR RIGHT-OF-WAY AND STREET CONSTRUCTION. MARYA P. SPORY, A/K/A MARYA P. MUMPER, APPELLANT


Appeal from the Order of the Court of Common Pleas of Dauphin County in case of In Re: Condemnation by Lower Paxton Township of Land Owned by Marya P. Spory, a/k/a Marya P. Mumper, John Hughes and Meriam Hughes, his wife, and Charles H. Graff for Right-of-Way and Street Construction, No. 365 S. 1979.

COUNSEL

Louis J. Adler, for appellant.

Richard H. Wix, of Wix, Wenger & Weidner, for appellee.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 54 Pa. Commw. Page 18]

The appellant appeals here from the lower court's dismissal of her preliminary objections to condemnation

[ 54 Pa. Commw. Page 19]

    proceedings instituted against her property by the appellee, Lower Paxton Township (Township).

In September of 1974, the Township's Board of Supervisors (Board) decided after public discussion and receipt of an engineering report, to extend a public thoroughfare known as Colonial Road. In April of 1978, the Township engineers presented the Board with three alternative routes (Routes A, B and C) and recommended that Route B be adopted. Despite this recommendation, the Board selected Route A for the road extension and the Township then instituted condemnation proceedings against the appellant's property pursuant to Article X of The Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 66001 et seq. and the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-101 et seq.*fn1

The appellant contends that the Board's choice of Route A rather than Route B violated the Township's duty to protect and preserve the environment imposed upon the Commonwealth and its agents by Article I, Section 27 of the Pennsylvania Constitution*fn2 and was an arbitrary and capricious decision. She maintains that Route B is environmentally preferable because Route A would cause substantially greater

[ 54 Pa. Commw. Page 20]

    harm to the ecosystems of a neighboring stream and nearby woods,*fn3 and the Board's decision ignored Route A's detrimental effect on the environment.

In eminent domain cases, our review is limited to a determination as to whether or not the lower court decision evidences an abuse of discretion or error of law. Redevelopment Authority of Luzerne County v. Legosh, 39 Pa. Commonwealth Ct. 90, 394 A.2d 1089 (1978). The trial court itself must apply a three-part standard established by this Court in Payne v. Kassab, 11 Pa. Commonwealth Ct. 14, ...


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