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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (03/16/89)

decided: March 16, 1989.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT OF WAY FOR LEGISLATIVE ROUTE 1021, SECTION 6, A LIMITED ACCESS HIGHWAY, IN THE TOWNSHIP OF OHIO, JOHN E. SANDIN ET AL., APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County, in the case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right of Way for Legislative Route 1021, Section 6, a limited access highway, in the Township of Ohio, John E. Sandin, William K. Hamburg and Elizabeth S. Baun Willison v. Commonwealth of Pennsylvania, Department of Transportation, GD No. 86-1667 (Sur GD No. 85-18959 and 85-18960).

COUNSEL

Thomas J. Dempsey, for appellants.

Jeffrey L. Giltenboth, Assistant Counsel, with him, John L. Heaton, Chief Counsel, for appellee.

Judges Colins and McGinley, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 124 Pa. Commw. Page 222]

John E. Sandin, William K. Hamburg and Elizabeth Willison, formerly Elizabeth Baun, (Appellants) appeal an order of the Allegheny County Court of Common Pleas sustaining the appeal of the Pennsylvania Department of Transportation (DOT) and vacating a report of a board of viewers.

This matter involves DOT's condemnation for transportation purposes, of two contiguous tracts of vacant residential property in Ohio Township, Allegheny County. On October 30, 1985, DOT filed a declaration of

[ 124 Pa. Commw. Page 223]

    taking against each parcel. One of the declarations appropriated part of a 54 acre tract which at the time of condemnation was owned by John E. Sandin, Marilyn Sandin, and Elizabeth S. Baun, now Willison, as tenants in common. The parcel had been purchased in 1972, by John E. Sandin, his wife Marilyn Sandin and Elizabeth Baun and her former husband, now deceased, Clinton Baun, from a Mrs. Rosinski and will be referred to as the Rosinski tract.

Another declaration of taking was filed against part of an approximately 96 acre tract. This tract and the Rosinski tract are contiguous. At the time of condemnation, the record owners were John E. Sandin and William K. Hamburg t/d/b/a Avonworth Farms. In 1977, John E. Sandin, Clinton Baun, William Hamburg and Harold M. Weston purchased the parcel from a Mrs. Nock and it will be referred to as the Nock tract. Weston's and Baun's interests were later transferred to Avonworth Farms.

Sandin, Hamburg, and Willison are joint venturers on a project to develop the parcels as a planned unit development.*fn1 A plan was drawn up in 1973 of both parcels showing three phases of development. In 1975, a plan of a planned unit development using both parcels was submitted to and approved by Ohio Township.

On January 13, 1986, Appellants filed a petition for appointment of a board of viewers claiming the two parcels form an "integrated use". A board of viewers was appointed and after a hearing, issued its report. In its report, the Board applied the "integrated use" doctrine. It then valued both parcels as one entity, awarding Appellants $320,000.00. DOT appealed, claiming the board erred in ...


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