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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (11/09/82)

decided: November 9, 1982.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF TWO (2) BILLBOARDS LOCATED ON T.R. 209 ETC. NORTHEAST OUTDOOR ADVERTISING, INC., APPELLANT


Appeal from the Order of the Court of Common Pleas of Schuylkill County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation of eight (8) Billboards located on T.R. 61, Schuylkill County; Northeastern Outdoor Advertising, Inc. v. Commonwealth of Pennsylvania, No. S-1882-78.

COUNSEL

Ira G. Barrows, for appellant.

Scott M. Olin, Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 69 Pa. Commw. Page 610]

This is an appeal from an order of the Court of Common Pleas of Schuylkill County which sustained preliminary objections to a Petition for Appointment of Board of Viewers filed by Northeast Outdoor Advertising, Inc. (Northeast) pursuant to the provisions of Section 502(e) of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-502(e). We affirm.

On November 29, 1978, Northeast filed a Petition for Appointment of Board of Viewers with the court of common pleas seeking compensation for eight billboards it owned along Route 61 in North Manheim Township and in the City of Pottsville, Pennsylvania. In response to this petition, the Pennsylvania Department of Transportation (D.O.T.) filed preliminary objections alleging, inter alia, that Northeast had not suffered any compensable harm, and both parties submitted certain stipulations and depositions to the court for the purpose of ruling on these preliminary objections. This evidence established (1) that each of the eight billboards had initially been located in areas zoned for residential use, and were only permitted to remain there because they were prior nonconforming uses, (2) that D.O.T. had entered into negotiations with Northeast to acquire the billboards pursuant to the provisions of Section 4 and 9 of the Outdoor Advertising Control Act of 1971 (Act), Act of December 15, 1971, P.L. 596, as amended, 36 P.S. §§ 2718.104 and 2718.109, and (3) that both areas where billboards were located were subsequently rezoned to permit commercial usage, thereby disqualifying them from acquisition under the provisions of the Act.*fn1 This evidence also established that D.O.T. informed Northeast

[ 69 Pa. Commw. Page 611]

    that since its billboards were now permitted outdoor advertising devices it would have to request annual permits for each billboard pursuant to the provisions of Section 7 of the Act, 36 P.S. § 2718.107. Northeast subsequently applied for, and received, permits for four of the eight boards, and D.O.T. then removed the remaining four billboards pursuant to the authority granted in Section 10 of the Act, 36 P.S. 2718.110,*fn2 when Northeast failed to request the required permits for these advertising devices. Based on this evidence, the court of common pleas concluded that the Commonwealth

[ 69 Pa. Commw. Page 612]

    had removed the four billboards pursuant to its police power, and not its eminent domain power, and hence, that Northeast was not entitled to compensation. The present appeal followed.

Before this Court, Northeast alleges that the Commonwealth's actions in removing four of its billboards constituted a compensable "de facto" taking. We disagree.

It is undisputed that D.O.T. removed the billboards in question here because of Northeast's failure to seek the required permits. It is also undisputed that D.O.T. was expressly authorized to do so by the provisions of Section 10 of the Act. As we stated in Reilly v. Department of ...


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