Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In re: Condemnation by the County of Allegheny, a Political Subdivision of the Commonwealth of Pennsylvania, of certain properties in Moon Township, County of Allegheny and Commonwealth of Pennsylvania; Samuel Brunette and Irene Brunette, husband and wife; Joseph W. DeNardo and Dolores J. DeNardo, husband and wife; Stanford G. Galloway and Olive J. Galloway, husband and wife; Anna M. Kane; Ronald V. Kohler and Margaret J. Kohler, husband and wife; James G. Kruppa and Mary E. Kruppa, husband and wife; Edward J. Merges and Margaret Merges, husband and wife; Clifford G. Porter and Margaret E. Porter, husband and wife; Wayne L. Reagle and Judith A. Reagle, husband and wife; Anthony D. Rossi and Dolores E. Rossi, husband and wife; Joseph Tesla and Ella A. Tesla, husband and wife; William R. Werthen and Rose Marie Werthen, husband and wife v. The County of Allegheny, a Political Subdivision of the Commonwealth of Pennsylvania, No. G.D. 79-19418, Eminent Domain Proceedings.
James H. McLean, County Solicitor, with him Samuel P. Kamin, Assistant County Solicitor, for appellants.
Sandy W. Scichilone, for appellees.
Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.
[ 63 Pa. Commw. Page 101]
This de facto condemnation appeal is from an order of the Court of Common Pleas of Allegheny County, dismissing appellant Allegheny County's preliminary objections to a petition for the appointment of viewers filed by the appellees, twelve homeowners whose properties are located near the Greater Pittsburgh International Airport.
In July 1979, the homeowners, in response to the county's plan to construct and operate a new airport runway, filed a petition for the appointment of viewers. On April 18, 1980, the county began operating the new runway, now a primary runway for landings at the airport. The new runway's centerline is approximately 1200 feet from the centerline of a parallel former runway, so that the new glide path is directly over the residences of the homeowners.
Anticipating that change, the homeowners in their petition alleged that the operation of the new runway would result in a de facto taking of their properties due to damage to their properties caused by the new flight patterns requiring aircraft to fly closer to their homes. After an evidentiary hearing, the common pleas court held that, as of April 18, 1980, the date the county began operating the new runway, the county had taken the homeowners' properties within the provisions of the Eminent Domain Code (Code),*fn1 as a consequence
[ 63 Pa. Commw. Page 102]
of the effect of air traffic to and from the airport upon the properties.
A de facto taking occurs when the actions of the alleged condemnor substantially deprive an owner of the beneficial use and enjoyment of his property. Helms v. Chester Redevelopment Authority, 32 Pa. Commonwealth Ct. 377, 379 A.2d 660 (1977). Here the county contends that the record lacks substantial evidence*fn2 that the operation of the new runway caused changes to the homeowners' properties sufficiently drastic to deprive them substantially of beneficial use and enjoyment.
The county buttresses its contention by pointing to agreement of the noise experts on both sides that, even though the level of noise did increase at ten of the twelve homes after the new runway commenced operations, the level of noise had been in the normally unacceptable range even before the opening of the runway according to Department of Housing and Urban Development (HUD) guidelines.
However, we agree with the trial court's reasoning that, although the HUD guidelines provide helpful guidance, they are not conclusive on the issue of change of conditions. Furthermore, the impact of noise is only one factor to be ...