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Pennsburg Couple Wins Commonwealth Court Appeal
Written by Bradley Schlegel, Staff Writer
2019-04-17

Not a proper purpose for which a school district may condemn property

            A Pennsburg couple recently won a court challenge to prevent the Upper Perkiomen School District from condemning a portion of its property to widen existing sidewalks. Last week, a three-judge panel from the Commonwealth Court ruled in favor of Dennis and Shirley Giansante.

            The memorandum opinion – written by Judge Patricia McCullough and filed April 10 – reversed a previous Montgomery County Court of Common Pleas decision, ruling that the construction of a sidewalk at 1028 Montgomery Ave. – situated approximately 1,000 feet from the location of the new middle school – is not a proper purpose for which a school district may condemn property.

            A Red Hill attorney representing the couple argued successfully in December that the district exceeded its authority by filing a declaration to acquire a permanent sidewalk for use by the school and general public. He contended that the school officials were required to ask Pennsburg Borough Council to exercise its authority for a public purpose. According to the Chris Mullaney, state law allows school districts to condemn property for only schools, playgrounds and parking lots.

            "It's our belief that the district has not talked to the borough about this parcel," the lawyer said two years ago.

            Additionally, Mullaney – citing Title 26, Section 306(g) – said he will file paperwork with the court to force the school district to release its claim to the property and reimburse his clients' legal fees. According to the lawyer, the district has the right to reconsideration by Pennsylvania Superior Court or it could ask the Pennsylvania Supreme Court to hear the case.

            "I don't expect the district to file an appeal," Mullaney said.

            The district is looking at its options regarding the Giansante corner, according to Nicole Gum, a communications specialist for the district. She said the ruling will not impact the work to install sidewalks on the other side of Montgomery Avenue, which will take place this summer.

            Sidewalks have not been constructed on the corner property, located at the intersection of Montgomery Avenue and 11th Street, according to the lawyer. He said the district took ownership of the property as soon as it filed a declaration of taking. Mullaney declined to disclose the price of the easement as designated by the district, but said no money was exchanged.

            The school district hoped to obtain 73 square feet of permanent easement, as well as an additional 177 square feet for a construction easement, from the property in the borough. In June of 2017, the school board passed a resolution authorizing the condemnation of a portion of the property for "off-site sidewalk improvements to provide a safe walking route for students" to the planned middle school, according to the legal decision.

            On Feb. 15, 2018, following a trial in the Common Pleas Court,  Judge Joseph A. Smyth ruled in favor of the district, explaining that although the couple opposed the condemnation of their property, they "cited no authority directly, or even indirectly, holding that building a sidewalk to a school is not a proper school purpose. The judge instead simply observing that the statutes authorizing the condemnation of property by schools nowhere used the words 'sidewalks' or 'temporary construction easement.'"

            Smith also noted the district's assertion that that the Pennsylvania Department of Transportation (PennDOT) had determined the existing walking route to the new middle school was hazardous and that, if the District did not construct the sidewalk to provide a safe walking route, all students would have to be bused to the new middle school, according to the decision from Commonwealth Court.


 

 

 

 

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