PRINTER'S NO. 3575
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2538
Session of
2024
INTRODUCED BY PROBST, PIELLI, HILL-EVANS, GIRAL, KENYATTA,
RADER, STEELE, KHAN, ROZZI, BURGOS, BOROWSKI AND OTTEN,
AUGUST 21, 2024
REFERRED TO COMMITTEE ON STATE GOVERNMENT, AUGUST 21, 2024
AN ACT
Amending Title 26 (Eminent Domain) of the Pennsylvania
Consolidated Statutes, in general provisions, further
providing for definitions; in procedure to condemn, further
providing for declaration of taking, for security required
and for recording notice of condemnation, providing for
advanced notice to condemnee and further providing for notice
to condemnee, for preliminary objections, for possession,
right of entry and payment of compensation and for revocation
of condemnation proceedings; in procedure for determining
damages, further providing for petition for appointment of
viewers, for report of viewers, for allocation of damages and
for liens and distribution of damages; in just compensation
and measure of damages, further providing for measure of
damages, for condemnee's costs where no declaration of taking
filed and for limited reimbursement of appraisal, attorney
and engineering fees and providing for coverage of mortgages
and liens and for compensation for loss of goodwill of
business or farm operation; and, in evidence, providing for
proof of continuous ownership.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The definition of "comparable replacement
dwelling" in section 103 of Title 26 of the Pennsylvania
Consolidated Statutes is amended and the section is amended by
adding definitions to read:
§ 103. Definitions.
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Subject to additional definitions contained in subsequent
provisions of this title which are applicable to specific
provisions of this title, the following words and phrases when
used in this title shall have the meanings given to them in this
section unless the context clearly indicates otherwise:
* * *
"Blighted property." The term shall have the same meaning as
the term "abandoned property" in section 3 of the act of
November 26, 2008 (P.L.1672, No.135), known as the Abandoned and
Blighted Property Conservatorship Act.
* * *
"Comparable replacement dwelling." A dwelling that is:
(1) Decent, safe and sanitary.
(2) Adequate in size to accommodate the occupants.
(3) Within the financial means of the displaced person.
(4) Functionally equivalent.
(5) In an area not subject to unreasonable adverse
environmental conditions.
(6) In a location generally not less desirable than the
location of the displaced person's dwelling with respect to
public utilities, facilities, services and the displaced
person's place of employment.
(7) Within the same school district as the condemned
dwelling if any of the occupants in the condemned dwelling is
a child that, at the time of condemnation, attends a school
within the school district in which the condemned dwelling is
located.
* * *
"Continuous ownership." A continuous and unbroken chain of
ownership of a property by a condemnee and the family of the
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condemnee as provided under section 1107 (relating to proof of
continuous ownership).
* * *
"Marginalized community." A group of people who experience
social, economic or political exclusion or discrimination based
on characteristics such as race, ethnicity, gender, sexual
orientation, socioeconomic status, disability or religion.
* * *
"Replacement value." A valuation that is calculated as the
summation of the following:
(1) The value of the land as if the land was vacant.
(2) The cost of replacing or duplicating existing
structures on the land, including machinery, equipment or
fixtures, adjusting for depreciation.
* * *
Section 2. Sections 302, 303(a) and 304(a)(1) of Title 26
are amended to read:
§ 302. Declaration of taking.
(a) Condemnation and passage of title.--
(1) Condemnation under the power of condemnation given
by law to a condemnor shall be effected [only by] when, after
the filing in court of a declaration of taking with the
security required under section 303(a) (relating to security
required), the determination of last resort is made under
subsection (f).
(2) The title which the condemnor acquires in the
property condemned shall pass to the condemnor on the date of
[the filing] the court determining last resort under
subsection (f), and the condemnor shall be entitled to
possession under section 307 (relating to possession, right
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of entry and payment of compensation).
(b) Contents.--The declaration of taking shall be in writing
and executed by the condemnor following the determination of
last resort by the court under subsection (f) and shall be
captioned as a proceeding in rem and contain the following:
(1) The name and address of the condemnor.
(2) A specific reference to the statute and section
under which the condemnation is authorized.
(3) A specific reference to the action, whether by
ordinance, resolution or otherwise, by which the declaration
of taking was authorized, including the date when the action
was taken and the place where the record may be examined.
(4) A brief description of the purpose of the
condemnation.
(5) A description of the property condemned, sufficient
for identification, specifying the municipal corporation and
the county or counties where the property taken is located, a
reference to the place of recording in the office of the
recorder of deeds of plans showing the property condemned or
a statement that plans showing the property condemned are on
the same day being lodged for record or filed in the office
of the recorder of deeds in the county in accordance with
section 304 (relating to recording notice of condemnation).
(6) A statement of the nature of the title acquired, if
any.
(7) A statement specifying where a plan showing the
condemned property may be inspected in the county in which
the property taken is located.
(8) A statement of how just compensation has been made
or secured.
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(b.1) Additional content requirements.--If the property
condemned is not a blighted property, the declaration of taking
shall also contain the following:
(1) The alternatives that were considered, including:
(i) Alternatives that did not involve the use of
eminent domain for the program or project.
(ii) Alternatives that involve the use of eminent
domain but condemn fewer properties.
(iii) Alternatives that involve the use of eminent
domain but would not disproportionately affect a
marginalized community.
(2) A statement outlining why the specified exercise of
the power of eminent domain to take private property is the
only feasible option among the alternatives. The statement
shall include the following:
(i) Evidence that the condemnor fully considered if
the benefits of the program or project outweigh the
negative impacts of the exercise of the power of eminent
domain to take private property on the surrounding
community.
(ii) Evidence that the exercise of the power of
eminent domain to take private property would not
exacerbate existing inequities in the surrounding
community.
(3) Evidence that a comparable replacement dwelling is
available to the condemnee.
(c) More than one property included in declaration.--The
condemnor may include in one declaration of taking any or all of
the properties specified in the action by which the declaration
of taking was authorized.
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(d) Fee.--The prothonotary shall charge one fee for filing
each declaration of taking, which shall be the same regardless
of the number of properties or condemnees included.
(e) Filing.--The condemnor shall file within one year of the
action authorizing the declaration of taking a declaration of
taking covering all properties included in the authorization not
otherwise acquired by the condemnor within this time.
(f) Determination of last resort.--
(1) Within 30 days after the receipt of a declaration of
taking, the court shall determine whether the condemnor
sufficiently demonstrates that the exercise of the power of
eminent domain to take private property is the last resort.
The court shall grant determination of last resort if the
following are satisfied:
(i) The condemnor demonstrates the condemnor fully
considered if the benefits of the program or project
outweigh the negative impacts of the exercise of the
power of eminent domain to take private property on the
surrounding community.
(ii) The condemnor demonstrates the exercise of the
power of eminent domain to take private property would
not disproportionately affect a marginalized community.
(iii) The condemnor demonstrates that the exercise
of the power of eminent domain to take private property
outlined in the declaration of taking is the only
feasible option among the alternatives considered.
(iv) The condemnor demonstrates that a comparable
replacement dwelling is available to the condemnee.
(2) The court shall make the determination by
considering the content provided by the condemnor under
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subsection (b.1).
(3) Immediately after the court determines that the
exercise of the power of eminent domain to take private
property is the last resort, the declaration of taking shall
go into effect.
(4) If the court determines that the exercise of power
of eminent domain to take private property is not the last
resort, the court shall provide a statement to the condemnor
outlining why the determination was not granted and provide
the condemnor 30 days to remedy any insufficiencies.
(g) Condemnation of blighted property.--If the condemned
property is a blighted property, the following apply:
(1) When filing a declaration of taking, the condemnor
shall exclude the content as provided under subsection (b.1)
in the declaration of taking.
(2) The condemnation of blighted property shall not
require a determination of last resort as provided under
subsection (f).
(3) The title which the condemnor acquires in the
property condemned shall pass to the condemnor on the date of
the filing and the condemnor shall be entitled to possession
under section 307.
(4) (i) The just compensation for blighted property
shall be as provided in section 702(a)(1) (relating to
measure of damages).
(ii) The blighted property shall not be eligible for
augmentation of just compensation as provided in section
702(d).
(iii) The blighted property shall not be eligible
for coverage of mortgages and liens as provided in
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section 711.1 (relating to coverage of mortgages and
liens).
(iv) The blighted property shall not be eligible for
compensation for loss of goodwill under section 717
(relating to compensation for loss of goodwill of
business or farm operation).
§ 303. Security required.
(a) Bond.--Except as provided in subsection (b), every
condemnor shall give security to effect the condemnation, after
a court determines that the exercise of the power of eminent
domain to take private property is the last resort, by filing
with the declaration of taking its bond, without surety, to the
Commonwealth for the use of the owner of the property interests
condemned, the condition of which shall be that the condemnor
shall pay the damages determined by law.
* * *
§ 304. Recording notice of condemnation.
(a) County of recording.--
(1) The condemnor, upon [filing its declaration of
taking] the court determining that the exercise of the power
of eminent domain to take private property is the last
resort, shall on the same day lodge for record a notice of
the declaration in the office of the recorder of deeds of the
county in which the property is located.
* * *
Section 3. Title 26 is amended by adding a section to read:
§ 304.1. Advanced notice to condemnee.
(a) Written advanced notice.--Within 30 days prior to the
filing of a declaration of taking, the acquiring agency shall
provide written notice to a proposed condemnee, mortgagee of
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record and lienholder of record.
(b) Service.--The advanced notice shall be served in the
same manner as required for the notice under section 305(b)
(relating to notice to condemnee).
(c) Contents.--The advanced notice shall include:
(1) The name of the proposed condemnee to whom the
proposed condemnation is directed.
(2) A statement that the acquiring agency intends to
file a declaration of taking for the acquisition of the
proposed condemnee's property, which shall proceed after a
court grants determination of last resort, no less than 30
days from the date of the advanced notice.
(3) The name, address and contact information, including
a telephone number and email address, at which a
representative of the acquiring agency can be reached.
(4) A statement that the proposed condemnee's property
or portion of the property may be condemned for the purposes
of the acquiring agency's program or project.
(5) A brief description of the purpose of the proposed
condemnation, including the acquiring agency's proposed
project.
(6) A brief description of the condemnation process in
this Commonwealth, including all of the following:
(i) What eminent domain is.
(ii) The rights of a condemnee under law, including
the right to hire a lawyer to help guide the condemnee
through the condemnation process.
(iii) How just compensation is determined and made
or secured under the laws of this Commonwealth.
(iv) How a determination of last resort is made.
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(v) The steps the acquiring agency will take next if
the proposed condemnee's property is subject to a
declaration of taking.
(vi) The process by which the proposed condemnee may
challenge the power or the right of the acquiring agency
to appropriate the condemned property, the sufficiency of
the security, the determination of last resort, the
procedure followed by the acquiring agency or the
declaration of taking.
(d) Proof of service and compliance.--Filing of a copy of
the advanced notice and proof of service of the advanced notice,
together with the filing of the declaration of taking and
security as required under sections 302 (relating to declaration
of taking) and 303 (relating to security required), shall
constitute compliance with the notice requirements of this
section.
(e) Publication.--Within 24 hours of issuing advanced notice
to a proposed condemnee under subsection (a), an acquiring
agency shall post the advanced notice on the acquiring agency's
publicly accessible Internet website, if available, and at the
acquiring agency's principal office location.
Section 4. Section 305(a) and (c)(13) of Title 26 are
amended and subsection (c) is amended by adding a paragraph to
read:
§ 305. Notice to condemnee.
(a) Written notice.--Within 30 days after the [filing of the
declaration of taking] court determines that the exercise of the
power of eminent domain to take private property is the last
resort, the condemnor shall give written notice of the filing to
the condemnee, to any mortgagee of record and to any lienholder
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of record.
* * *
(c) Contents.--The notice to be given the condemnee shall
state:
* * *
(12.1) A statement of how the determination of last
resort was made.
(13) A statement that, if the condemnee wishes to
challenge the power or the right of the condemnor to
appropriate the condemned property, the sufficiency of the
security, the determination of last resort, the procedure
followed by the condemnor or the declaration of taking, the
condemnee must file preliminary objections within 30 days
after being served with notice of condemnation.
* * *
Section 5. Section 306(a)(3) of Title 26 is amended by
adding a subparagraph to read:
§ 306. Preliminary objections.
(a) Filing and exclusive method of challenging certain
matters.--
* * *
(3) Preliminary objections shall be limited to and shall
be the exclusive method of challenging:
* * *
(iii.1) The determination of last resort.
* * *
Section 6. Sections 307(b)(1), 308(a), 502(a)(2) and (c)
heading and (1), 512(4), 519(b) and 521(a)(1) of Title 26 are
amended to read:
§ 307. Possession, right of entry and payment of compensation.
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* * *
(b) Tender of possession or right of entry by condemnee.--
(1) If within 60 days from the [filing of the
declaration of taking] court granting determination of last
resort the condemnor has not paid just compensation as
provided in subsection (a), the condemnee may tender
possession or right of entry in writing, and the condemnor
shall then make payment of the just compensation due the
condemnee as estimated by the condemnor.
* * *
§ 308. Revocation of condemnation proceedings.
(a) Declaration of relinquishment.--
(1) The condemnor, by filing a declaration of
relinquishment in court within two years from the [filing of
the declaration of taking] court granting determination of
last resort and before having made the payment provided in
section 307(a) or (b) (relating to possession, right of entry
and payment of compensation) or as to which the condemnee has
not tendered possession of the condemned property as provided
in section 307, may relinquish all or any part of the
property condemned that it has not taken actual possession of
for use in the improvement.
(2) The title shall then revest in the condemnee as of
the date of the [filing of the declaration of taking]
determination by the judge that the use of eminent domain is
the last resort, and all mortgages and other liens existing
as of that date and not thereafter discharged shall be
reinstated.
* * *
§ 502. Petition for appointment of viewers.
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(a) Contents of petition.--A condemnor, condemnee or
displaced person may file a petition requesting the appointment
of viewers, setting forth:
* * *
(2) The date of the [filing of the declaration of
taking] court granting determination of last resort and
whether any preliminary objections have been filed and remain
undisposed of.
* * *
(c) Condemnation where no declaration of taking has been
filed or no determination of last resort has been made.--
(1) An owner of a property interest who asserts that the
owner's property interest has been condemned without the
filing of a declaration of taking or determination of last
resort may file a petition for the appointment of viewers
substantially in the form provided for in subsection (a)
setting forth the factual basis of the petition.
* * *
§ 512. Report of viewers.
The viewers shall file a report which shall include in brief
and concise paragraph form:
* * *
(4) The date of the [filing of the declaration of
taking] determination of last resort.
* * *
§ 519. Allocation of damages.
* * *
(b) Other damages.--The jury or the court in a trial without
a jury shall make specific findings as to the portion of the
verdict allocated to:
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(1) general damages;
(2) moving and removal expenses;
(3) business dislocation damages; and
(4) other items of special damages authorized by this
title;
except reasonable appraisal, attorney and engineering fees
recoverable under sections 306 (relating to preliminary
objections), 308 (relating to revocation of condemnation
proceedings), 709 (relating to condemnee's costs where no
declaration of taking filed or determination of last resort
made) and 710 (relating to limited reimbursement of appraisal,
attorney and engineering fees), which shall be determined by the
court in an appropriate case.
§ 521. Liens and distribution of damages.
(a) Liens.--
(1) Damages payable to a condemnee under sections 701
(relating to just compensation; other damages) through 707
(relating to removal of machinery, equipment or fixtures),
713 (relating to delay compensation), 714 (relating to
consequential damages), 715 (relating to damages for vacation
of roads) and 902(b)(1) and (2) (relating to moving and
related expenses of displaced persons) shall be subject to a
lien for all taxes and municipal claims assessed against the
property and to all mortgages, judgments and other liens of
record against the property for which the particular damages
are payable, existing at the date of the [filing of the
declaration of taking.] written advanced notice as provided
under section 304.1 (relating to advanced notice to
condemnee).
* * *
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Section 7. Section 702(a) of Title 26 is amended and the
section is amended by adding a subsection to read:
§ 702. Measure of damages.
(a) Just compensation.--Just compensation shall [consist of]
be the higher of the following:
(1) the difference between the fair market value of the
condemnee's entire property interest immediately before the
condemnation and as unaffected by the condemnation and the
fair market value of the property interest remaining
immediately after the condemnation and as affected by the
condemnation[.]; and
(2) the replacement value of the condemnee's property
interest.
* * *
(d) Augmentation of just compensation.--If a condemnee
provides the acquiring agency or court evidence showing proof of
continuous ownership as provided under section 1107 (relating to
proof of continuous ownership), the amount awarded under
subsection (a) shall be augmented by an additional 1% for each
year of continuous ownership. The amount of augmentation shall
be no greater than 25% of the amount awarded under subsection
(a).
Section 8. Sections 709 heading and 710(a) of Title 26 are
amended to read:
§ 709. Condemnee's costs where no declaration of taking filed
or determination of last resort made.
* * *
§ 710. Limited reimbursement of appraisal, attorney and
engineering fees.
(a) General rule.--The owner of any right, title or interest
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in real property acquired or injured by an acquiring agency, who
is not eligible for reimbursement of fees under section 306(g)
(relating to preliminary objections), 308(d) (relating to
revocation of condemnation proceedings) or 709 (relating to
condemnee's costs where no declaration of taking filed or
determination of last resort made), shall be reimbursed in an
amount not to exceed $4,000 per property, regardless of right,
title or interest, as a payment toward reasonable expenses
actually incurred for appraisal, attorney and engineering fees,
except where the taking is for an easement related to
underground piping for water or sewer infrastructure, in which
case the reimbursement is limited to $1,000, regardless of
right, title or interest.
* * *
Section 9. Title 26 is amended by adding sections to read:
§ 711.1. Coverage of mortgages and liens.
If there is an installment purchase contract, mortgage or
other evidence of debt on the acquired property at the time of
the written advanced notice as provided in section 304.1
(relating to advanced notice to condemnee), the condemnee shall
be entitled to additional compensation to cover in full the
remaining balance at the time of the written advanced notice of
the installment purchase contract, mortgage or other evidence of
debt on the acquired property.
§ 717. Compensation for loss of goodwill of business or farm
operation.
(a) General rule.--The owner of a business or farm operation
conducted on the property taken under this title, or, if the
property is part of a larger parcel, on the remainder, shall be
compensated for loss of goodwill if the owner proves all of the
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following:
(1) The loss is caused by the taking of the property or
the injury to the remainder.
(2) Compensation for the loss will not be duplicated in
the compensation otherwise awarded to the owner.
(b) Rebuttal of compensation.--The acquiring agency may
rebut the compensation provided under subsection (a) if the
acquiring agency proves that the loss could have reasonably been
prevented by a relocation of the business or farm operation or
by taking steps and adopting procedures that a reasonably
prudent person would take or adopt in preserving the goodwill.
(c) Leaseback agreement.--If the acquiring agency and the
owner of a business or farm operation enter into a leaseback
agreement, the following shall apply:
(1) No additional goodwill shall accrue during the
lease.
(2) The entering of a leaseback agreement shall not be a
factor in determining goodwill, and any liability for
goodwill shall be established and paid at the time of
acquisition of the property by eminent domain or subsequent
to notice that the property may be taken by eminent domain.
(d) Use of State tax returns.--
(1) If the owner of a business or farm operation and the
acquiring agency do not agree on the value of goodwill, the
owner shall make available to the board of viewers or court,
and the board of viewers or court shall, upon terms and
conditions that will preserve confidentiality, make available
to the acquiring agency, the State tax returns of the
business or farm operation. The acquiring agency shall review
the State tax returns solely for the purpose of determining
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the amount of compensation under this section.
(2) Nothing in this section shall be construed to affect
any right a party may otherwise have to discovery or to
require the production of documents, papers, books and
accounts.
(e) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection unless the context clearly indicates otherwise:
"Goodwill." The benefits that accrue to a business or farm
operation as a result of its location, cultural heritage value
to the community, reputation for dependability, skill or quality
and any other circumstance resulting in probable retention of
old or acquisition of new patronage.
§ 1107. Proof of continuous ownership.
(a) Eligibility.--A condemnee shall be eligible for
augmentation of just compensation as provided under section
702(d) (relating to measure of damages) if the condemnee
provides evidence to the acquiring agency or court showing proof
of continuous ownership.
(b) Establishing continuous ownership.--Proof of continuous
ownership of a property may be established through evidence of
ownership of the property by the condemnee and the family of the
condemnee, which shall include siblings, parents, grandparents,
aunts or uncles of the condemnee or the spouse of the condemnee.
(c) Burden of proof.--The condemnee shall have the burden of
providing continuous ownership to the acquiring agency or court.
Section 10. This act shall apply retroactively to a
declaration of taking filed on or after January 1, 2024.
Section 11. This act shall take effect immediately.
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