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TO: Honorable Tim Hennessey
FROM: Edward C. Hussie, Chief Counsel
RE: Condemnation of Golf Course
In response to your request, I am enclosing:
- A copy of the 1964 Joint State Commission Report which is the most
comprehensive embodiment of the legislative intent behind the adoption
of our current Eminent Domain Code. This report is unlikely to be
of any meaningful assistance to the constituent since the Eminent
Domain Code generally addresses issues relating largely to procedure,
damages and evidence rather than the scope of any condemnor's power
to condemn property, which power is scattered throughout a multitude
of specific authorizing statutes such as the ones discussed below.
- 53 P.S. § 37801 which empowers third class cities to condemn
land for the purpose of establishing "recreation places."
- 53 P.S. § 38703 which empowers third class cities to condemn
land for the purpose of establishing recreation places which it defines
to consist of "public parks, parkways, playgrounds, playfields,
gymnasiums, public baths, swimming pools or indoor recreation centers.
..." Unlike § 37801, § 38703 expressly authorizes third
class cities to condemn lands outside city limits in furtherance of
the foregoing purposes.
- A Supreme Court opinion in Dornan v. Philadelphia Housing Authority,
200 A. 834 (1938), which declared, by way of dicta (since the case
did not involve a golf course), that "the taking of land for
a public golf course or playground would be for a public use although,
while some players are using it, all other members of the public
are necessarily excluded from utilizing and enjoying the facilities."
It does not automatically follow that a given government entity
possesses the specific statutory authority to condemn land for use
as a public golf course merely because a public golf course may
fall within the scope of a "public use" for condemnation
purposes. In this regard, it would appear to me as though the city
would have to persuade the court that a golf course qualifies as
a "recreational place": (a) under § 37801; or (b)
under § 38703 if it wishes to condemn land beyond its borders
for this purpose. It might be somewhat more difficult for a city
to establish that a golf course is a "recreation place"
within the meaning of § 38703 (than would be the case under
§ 37801), since § 38703 contains a list of specific items
comprising recreation places that: (a) omits any express reference
to golf courses; and (b) does not use terminology such as "including
but not limited to," which would contemplate broader application
beyond these itemized examples.
- A 1970 Montgomery County Court decision in Upper Merion-Valley Forge
Municipal Authority Condemnation which ruled that language in the
Municipality Authorities Act permitting authorities to own and operate
"parks" and "recreation grounds" was not sufficient to justify the
exercise of eminent domain to condemn a private golf course for the
purpose of converting it into a public golf course.
- 6 P.S. § 1-406 of the Eminent Domain Code, which requires that
a landowner must file preliminary objections within 30 days after
being served with a notice of condemnation in order to contest the
condemnor's legal authority to exercise the right of eminent domain.
This memorandum represents a personal opinion and has no official force
or effect whatsoever.
If I can be of any further assistance, please let me know
ECH:kag
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