Appeal from the Order of the Court of Common Pleas of Delaware County in the case of Southeast Delco School District v. Commonwealth of Pennsylvania, Department of Transportation, No. 84-2075.
J. Matthew Wolfe, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
Peter J. Nolan, for appellee.
Judges Rogers and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.
[ 97 Pa. Commw. Page 486]
The Department of Transportation (DOT) appeals an order of the Common Pleas Court of Delaware County, which dismissed its preliminary objections to the Southeast Delco School District's (School District) petition for the appointment of viewers. The common pleas court found that a de facto taking did occur as of October 15, 1981, and ordered the Board of Viewers to proceed to determine damages. We reverse.
Since 1979, the School District contemplated building a high school on a plot of ground which it owned. Between 1981 and 1984, DOT advised the School District that it contemplated taking a portion of its plot for a bridge and road construction. There were public announcements of this intended improvement. Hearings were held, at which condemnation appeared imminent. There was appraisal activity in the area, and the School District was advised concerning the estimated just compensation.
DOT furnished the School District with a plan which showed that portion of the plot which was to be taken for the improvement. Based on this plan the School District adjusted its construction plans. The new school was completed in 1984. The construction did not include that portion of land to be taken by DOT according to the plan.
The School District contends that DOT, although clothed with the power of eminent domain but prior to
[ 97 Pa. Commw. Page 487]
its formal exercise, engaged in conduct which impinged upon the beneficial use of its property, and resulted in a diminution of value. Thus, the School District seeks compensation on the basis of a de facto taking.
Our scope of review is to determine whether the findings are supported by substantial evidence and whether an error of law was committed. Petition of Ramsey, 31 Pa. Commonwealth Ct. 182, 375 A.2d 886 (1977).
Although recognizing the need to balance the flexibility of planning agencies with that of the property owner, our courts have not set down any hard-and-fast rules in determining a de facto taking. It depends on the factual situation in each case. However, our courts have concluded that the recording of final plans, even when accompanied by newspaper articles, agency announcements, plans awaiting the Governor's approval, negotiations with owners, and real estate appraisals are not sufficient to constitute a de facto taking. Commonwealth Appeal, 422 Pa. 72, 221 A.2d 289 (1966); Department of Transportation v. Securda ...