36 Pa. Commw. 394 | Pa. Commw. Ct. | 1978
Opinion by
This is an appeal from a decision of the Court of Common Pleas of Berks County which dismissed the preliminary objections raised by the appellant to the declaration of taking filed by the appellee. We affirm.
The appellant is the owner of certain premises located at 130 Court Street in the City of Reading. The appellee is the Redevelopment Authority of the City
On appeal to this Court appellant has similarly raised issues which he did not put forth by way of preliminary objection. Appellant contends that there is nothing in the record to show that a certification of blight was ever made by any planning commission, and that even if such a certification was rendered, too long a time elapsed between the date it was rendered and the date on which the declaration of taking was filed. Appellant also renews his contention that any certification of blight should have been rendered by the Berks County Planning Commission and not by the Reading Planning Commission.
Section 406 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-406, specifies the issues which may be raised by way of preliminary objection in any eminent domain proceeding, and further provides that failure to so raise those issues constitutes a waiver thereof. The issues which appellant seeks to put forth here may be considered as relating to the power or right of the appellee to have instituted these condemnation proceedings, and they would have been cognizable, un
Appellant does state in his preliminary objections that the premises in question are not in fact blighted. This is an issue that is properly raised by way of paragraph three of the preliminary objections. Simco Stores v. Redevelopment Authority, 455 Pa. 438, 317 A.2d 610 (1974). Appellant has not, however, presented any substantial evidence in support of this claim, and we will therefore not disturb the conclusion that the area in question is blighted. Moreover, we note that a planning commission and a redevelopment authority are presumed to have performed their duties in good faith, and the appellant’s burden of proving fraud or abuse of discretion is a heavy one. Simco Stores, supra.
Accordingly, we will enter the following
Order
And Now, July 5, 1978, the decision of the Court of Common Pleas of Berks County, at No. 216 January Term, 1976, dated July 5, 1977, is affirmed.