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05/01/97 CONDEMNATION BY CENTRE TOWNSHIP MUNICIPAL

May 1, 1997

IN RE: CONDEMNATION BY CENTRE TOWNSHIP MUNICIPAL AUTHORITY, BERKS COUNTY, PENNSYLVANIA, OF A 3.49 ACRE TRACT OF LAND SITUATE IN CENTRE TOWNSHIP BOUNDED BY RAILROAD ROAD, READING AVENUE (A 40' WIDE UNOPENED STREET), OTHER: LANDS OF ELWOOD L. AND RUTH C. OHLINGER, AND LANDS OF DAVID AND DONNA KREPPS, LANDS OF WILLIAM A. KISSINGER (DECEASED) AND HELEN M. KISSINGER, MUHLENBERG AVENUE (AN UNOPENED STREET) AND READING BLUE MOUNTAIN AND NORTHERN RAILROAD COMPANY, LANDS OF ELWOOD L. OHLINGER AND RUTH C. OHLINGER, HIS WIFE, AND UNKNOWN OWNER OR OWNERS; ELWOOD L. OHLINGER AND RUTH C. OHLINGER, APPELLANTS


Appealed From No. 5644-94 A.D. Common Pleas Court of the County of Berks. Judge STALLONE.

Before: Honorable Bernard L. McGINLEY, Judge, Honorable Dan Pellegrini, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Pellegrini.

The opinion of the court was delivered by: Pellegrini

OPINION BY JUDGE PELLEGRINI

FILED: May 1, 1997

Elwood L. Ohlinger and Ruth C. Ohlinger, his wife (Condemnees) appeal from the June 19, 1996 order of the Court of Common Pleas of Berks County (trial court) which overruled their preliminary objection to the trial court's jurisdiction in the instant action.

Condemnees are the owners of a 3.49 acre tract of land (property) which contains two paper streets *fn1 resulting from a dedication contained in a subdivision plan. On October 25, 1994, the Centre Township Municipal Authority (Condemnor) filed a declaration of taking, condemning in fee simple absolute the property for construction of a sewage treatment plant and a right-of-way to obtain ingress and egress to and from that plant.

Condemnees filed preliminary objections to the declaration of taking in which they alleged that the trial court did not have subject matter jurisdiction over the action since, pursuant to Section 306 of the Administrative Code (Code), *fn2 Condemnor was first required to request that the Agricultural Lands Condemnation Approval Board (Agricultural Board) determine that there is no reasonable and prudent alternative for the project. Section 306 of the Code provides in relevant part:

(a) The Agricultural Lands Condemnation Approval Board is hereby created as an independent administrative board...

(b) Before condemning for any of the purposes set forth in subsection (d) any agricultural lands, as classified by the Agricultural Soil Conservation Service of the United States Department of Agriculture, which lands are being used for productive agricultural purposes, but not including the growing of timber, the Commonwealth of Pennsylvania and any of its political subdivisions, agencies or authorities shall request the Agricultural Lands Condemnation Approval Board to determine that there is no reasonable and prudent alternative to the utilization of such lands for the project.

(d) The board shall have jurisdiction over condemnation for the following purposes:

(1) Highway purposes, but not including activities relating to existing highways such as, but not limited to, widening roadways, the elimination of curbs or reconstruction.

(2) Disposal of solid or liquid waste material, but not including underground pipes used to transport waste. (emphasis added).

Condemnees contend that since Condemnor's alleged purpose as set forth in the declaration of taking included the ultimate disposal of sanitary sewage and public access to a road, the Agricultural Board, not the trial court, at least initially, had jurisdiction over whether the Condemnor could take the property. *fn3

As to the issue of whether disposal of solid or liquid waste was within the jurisdiction of the Agricultural Board, the trial court, relying on In the Matter of New Garden Township, 134 Pa. Commw. 531, 579 A.2d 459 (Pa. Commw. 1990), held that condemnation of land for construction of a sewage treatment plant does not mean it constitutes a taking for a sewage disposal facility. The trial court also held that the Agricultural Board had no jurisdiction over the condemnation because it was not for a "highway purpose" but was merely a right-of-way to and from the sewage ...


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