23 Pa. Commw. 77 | Pa. Commw. Ct. | 1976
Opinion by
In this appeal by property owners, Theodore G. Spencer and wife, they assert the lower court erred as a matter of law in its disposition on the merits of several issues raised by their preliminary objections to the declaration of taking of their property by the Redevelopment Authority of the City of Nanticoke. They also insist it likewise
Having considered the issues raised in this appeal which were decided by the lower court on their merits we affirm its order as to these issues and adopt its opinion in support thereof. The record rebukes appellants’ contentions that the taking in question was for a private rather than a public purpose and appellants wholly failed to establish that the governmental authorities acted illegally, arbitrarily or capriciously in planning, certifying and approving the flood project in question. The principles of law applicable to the resolution of such issues have again been reviewed and restated in our recent decision in Moyer Eminent Domain Appeal, 22 Pa. Commonwealth Ct. 487, 349 A.2d 781 (1976).
Considering other issues raispd by appellants’ preliminary objections dismissed for procedural reasons by the lower court, the record discloses the following background facts. Appellants are the fee owners of 2.526 acres of land in the Lower Broadway area of Nanticoke on which there is operated a junk yard and a new and used auto parts business. This property is within the boundaries of an urban renewal project known as the Lower Broadway Disaster Urban Renewal Area having been declared a blighted area after devastation by the flood associated with Hurricane Agnes. The plan calls for total clearance of all structures, residential and nonresidential, within the area.
We agree that this issue, framed in constitutional terms or otherwise, was improperly raised under Section 406 of the Code. We would further observe that the inability to relocate one’s business taken in condemnation cannot vitiate or negate the power of condemnation otherwise enjoyed by the Authority nor does the cost of such relocation, if relocation is possible, enlarge one’s constitutional entitlement to just compensation. See Sgarlat Estate v. Commonwealth, 398 Pa. 406, 158 A.2d 541, cert. denied, 364 U.S. 817 (1960). Appellants’ argument is singularly lacking in citation of any authority, Federal or State, that the cost of relocating a business is an element of damages in ascertaining just compensation constitutionally required to be paid under the power of eminent domain. That the legislature has seen fit to provide for such payments subject to the expressed conditions and limitations found in Section 601-A (b)(3) does not enlarge one’s constitutional right to just compensation for property taken.-
Appellants next attack Section 602(c) of the Code, 26 P.S. §1-602, as-denying to them the equal protection of the law in that these provisions afford to condemnees of property damaged by flood the before-flood value of their property when taken within certain time frames in connection with a flood prevention project or other public programs.
Although somewhat ingenious, these arguments on analysis are not persuasive. The provisions of Section 602(c) do not in any manner diminish or impair appellants’ entitlement to just compensation as constitutionally guaranteed to them and as recognized in Section 601 of the Code, 26 P.S. §1-601, the measure of damages for the taking being the fair market value of their property immediately before the condemnation and as unaffected by it. The appellants are, therefore, assured the fair market value of their property including the post-flood improvements made thereto. That other property owners in the project may receive something more by way of compensation for the taking of their property does not, directly or indirectly, impair appellants’ constitutional (fundamental) right to just compensation.
Nor do we find in this legislation a want of equal protection to appellants disassociated from their fundamental right to just compensation which itself is unimpaired. In this category there cannot be and the constitution does not require equal protection of law to all persons under all circumstances. The state action here taken to aid flood victims under the limited conditions and circum
. For further background and history of the project which has been the subject of two prior court decisions, see Project Area Committee v. Wilcox, 13 Pa. Commonwealth Ct. 4, 317 A.2d 651 (1974); Lower Broadway Citizens Group v. City of Nanticoke, 63 Luz. L. Reg. 172 (1973).