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WYOMING BOROUGH v. WYCO REALTY CO. (02/05/82)

decided: February 5, 1982.

WYOMING BOROUGH, APPELLANT
v.
WYCO REALTY CO., BERNARD BARTOLI AND DAVID MARCHESINI AND EVE MARCHESINI, HIS WIFE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Luzerne County in the case of Wyco Realty Co., Bernard Bartoli and David Marchesini and Eve Marchesini, his wife v. Wyoming Borough, No. 936-C of 1980.

COUNSEL

William F. Anzalone, Hourigan, Kluger & Spohrer Associates, for appellant.

Joseph C. Giebus, for appellees.

Judges Mencer, Rogers and Craig, sitting as a panel of three. Opinion by Judge Mencer. Judge Palladino did not participate in the decision in this case.

Author: Mencer

[ 64 Pa. Commw. Page 460]

In this eminent domain case, Wyoming Borough has appealed from an order of the Court of Common Pleas of Luzerne County which overruled the Borough's preliminary objections to a petition for the appointment of viewers filed by Wyco Realty Company, Bernard Bartoli, David Marchesini and Eve Marchesini (Wyco).

Wyco Realty Company purchased a 49.32-acre parcel of land in Wyoming Borough in 1961, and Bernard Bartoli purchased an adjacent 7-acre parcel in 1966. Mr. and Mrs. Marchesini have entered into an agreement to purchase both parcels of land. At the time of these purchases, the property was zoned R-2 (Two-family and Apartment Residence District) and, sometime prior to 1977, the property was improved with an apartment complex.

In 1977, Wyoming Borough adopted a Flood Plan Management Regulation which became Article XIII of the Borough's zoning ordinance. A dispute arose as to whether the 56.32 acres in question here were within an F-1 Zone (floodway designation) or an F-2 Zone (flood-fringe designation). After an engineering study, it was determined that the property was in an F-1 Zone, where construction or reconstruction of any building facility was prohibited.

[ 64 Pa. Commw. Page 461]

Wyco requested a special exception to modify the existing 7-unit modular apartment into a 7-unit apartment building. This application was denied and Wyco filed an appeal to the Court of Common Pleas of Luzerne County but, on April 26, 1979, Wyco caused the appeal to be discontinued.

The property in question has been considered as a ponding basin since 1957 when the United States Army Corps of Engineers completed a project of rerouting Abrahams Creek.

Following the adoption of the Flood Plan Management Regulations, Wyco petitioned, under Section 502(a) of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-502(a), for appointment of viewers. The Borough filed preliminary objections to the petition for appointment of viewers and, as we noted, the lower court overruled the preliminary objections and this appeal followed.

We are confronted, as we were in Gaebel v. Thornbury Township, 8 Pa. Commonwealth Ct. 399, 303 A.2d 57 (1973), with the contention that petitioners can seek damages under the provisions of the Eminent Domain Code for the effect upon their property of a change in a zoning ordinance. We held in Gaebel that the exclusive procedure for challenging a zoning regulation, on the basis that it is confiscatory, is under the provisions of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202. The Supreme Court of California reached a similar holding in Agins v. City of Tiburon, 24 Cal. 3d 266, 598 P.2d 25, 157 Cal. Rptr. 372 (1979), concluding that a landowner who is the victim of an excessive use of the police power may not ...


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