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IRVIN MERLIN v. COMMONWEALTH PENNSYLVANIA (02/11/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 11, 1983.

IRVIN MERLIN, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE

Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Condemnation in Fee Simple of an irregular 2.683 acre parcel of realty situate between Remington Road and Drayton Lane, Penn Wynne, Lower Merion Township, Montgomery County, Pennsylvania, for a surface water retention basin and Condemnation of an Easement for a period of one year over an irregular 0.377 acre parcel of realty situate between Remington Road and Drayton Lane, Penn Wynne, Lower Merion Township, Montgomery County, Pennsylvania, for the purposes of improving and realigning the channel of the west branch of Indian Creek so as to alleviate floods, No. 76-12725.

COUNSEL

Burton A. Rose, with him A. Charles Peruto, Peruto, Ryan and Vitullo, for appellant.

John H. Martin, with him Parker H. Wilson, Wilson, Oehrle, Drayer & Furber, for appellee, Lower Merion Township.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 72 Pa. Commw. Page 46]

By way of preliminary objection in this eminent domain case, Irvin Merlin challenged the formal condemnation of his property by Lower Merion Township in 1975 on the ground that its adoption of a floodplain ordinance in 1973 had earlier constituted a de facto taking of his unimproved lots, thereby entitling him to have compensation computed as of, and from, 1973.*fn1

The Montgomery County Court of Common Pleas dismissed Mr. Merlin's preliminary objection because he failed to prove that Lower Merion's adoption of the flood plain ordinance interfered with his use and enjoyment of the property; we affirm on other grounds.*fn2

Our decisions in Kraiser v. Horsham Township, 72 Pa. Commonwealth Ct. 16, 455 A.2d 782 (1983), Wyoming Borough v. Wyco Realty Co., 64 Pa. Commonwealth Ct. 459, 440 A.2d 696 (1982), and Gaebel v. Thornbury Township, 8 Pa. Commonwealth Ct. 399, 303 A.2d 57 (1973) control here. In those decisions, we held that when a landowner asserts that a zoning change has confiscated or unduly restricted his use of property, he cannot seek damages under the

[ 72 Pa. Commw. Page 47]

Eminent Domain Code;*fn3 rather, as his exclusive remedy, that landowner must challenge the substantive validity of the zoning ordinance under the Pennsylvania Municipalities Planning Code.*fn4

Mr. Merlin did not challenge the validity of the 1973 zoning ordinance. Because we must rule out a de facto taking by the regulatory ordinance as of 1973, as a matter of law, we affirm the common pleas court's dismissal of his preliminary objection.

Order

Now, February 11, 1983, the order of the Court of Common Pleas of Montgomery County, No. 76-12725, is hereby affirmed.

Disposition

Affirmed.


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