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UNITED STATES v. 76.208 ACRES

December 20, 1983

UNITED STATES OF AMERICA
v.
76.208 ACRES OF LAND, MORE OR LESS, IN THE TOWNSHIP OF HORSHAM, COUNTY OF MONTGOMERY, COMMONWEALTH OF PENNSYLVANIA, KEITH VALLEY ASSOCIATES, RONALD S. MINTZ, CO-PARTNER, ET AL.



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 This action is a condemnation proceeding by plaintiff, United States, against land located in Horsham Township, Montgomery County, Pennsylvania. Presently before the court are two matters which need to be resolved: 1) whether the United States can amend a Declaration of Taking to permit a use of land currently prohibited under a perpetual restrictive easement acquired by the United States in the Declaration of Taking; and 2) the effect of the United States' filing of a "Statement of Clarification of Estate Taken."

 I. FACTS

 On July 23, 1982, the United States filed a complaint and a Declaration of Taking pursuant to 40 U.S.C. § 258(a). The taking consisted of two parcels of real estate. Fee simple was acquired by the government over 4.912 acres and a perpetual restrictive easement was acquired over 71.296 acres. The taking was completed for purposes connected with Willow Grove Naval Air Station flight operations.

 The matters presently before the court concern a certain provision of the restrictive easement. That provision, as it is currently stated in the Declaration of Taking, provides that:

 
a. The PREMISES shall not be used for any use other than light industrial purposes such as, but not limited to those, set forth on Exhibit C1. In any event the PREMISES shall not be used for facilities or other such activities that may result in a concentration of people in excess of twenty-five (25) persons per acre of land at any one time.

 (Emphasis added).

 II. DISCUSSION

 A) Amendment of Declaration of Taking

 40 U.S.C. § 258(a), in pertinent part, provides:

 
In any proceeding in any court of the United States outside of the District of Columbia which has been or may be instituted by and in the name of and under the authority of the United States for the acquisition of any land or easement or right of way in land for the public use, the petitioner may file in the cause, with the petition or at any time before judgment, a declaration of taking signed by the authority empowered by law to acquire the lands described in the petition, declaring that said ...

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