§ 204. Eminent domain for private business prohibited.
(a) Prohibition.--Except as set forth in subsection (b), the exercise by any condemnor of the power
of eminent domain to take private property in order to use it for private enterprise
is prohibited.
(b) Exception.--Subsection (a) does not apply if any of the following apply:
(1) (i) the condemnee consents to the use of the property for private enterprise; or
(ii) the condemnee does not file or does not prevail on preliminary objection filed to
a declaration of taking for the acquisition of condemnee's property.
(2) The property is taken by, to the extent the party has the power of eminent domain,
transferred or leased to any of the following:
(i) A public utility or railroad as defined in 66 Pa.C.S. § 102 (relating to definitions).
(ii) A common carrier.
(iii) A private enterprise that occupies an incidental area within a public project, such
as retail space, office space, restaurant and food service facility or similar incidental
area.
(3) There is, on or associated with the property taken, a threat to public health or safety.
This paragraph includes the following:
(i) Removal of a public nuisance.
(ii) Removal of a structure which is:
(A) beyond repair; or
(B) unfit for human habitation or use.
This paragraph does not include activities and structures for which nuisance actions
are prohibited under section 4 of the act of June 10, 1982 (P.L.454, No.133), referred
to as the Right-to-Farm Law.
(4) The property taken is abandoned.
(5) The property taken meets the requirements of section 205 (relating to blight).
(6) The property taken is acquired by a condemnor pursuant to section 12.1 of the act
of May 24, 1945 (P.L.991, No.385), known as the Urban Redevelopment Law.
(7) The property taken is acquired for the development of low-income and mixed-income
housing projects pursuant to the act of May 28, 1937 (P.L.955, No.265), known as the
Housing Authorities Law, or to be developed using financial incentives available for
the development of low-income and mixed-income housing projects under:
(i) section 42 of the Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. § 42);
(ii) the Housing and Community Development Act of 1974 (Public Law 93-383, 88 Stat. 633);
(iii) the Cranston-Gonzalez National Affordable Housing Act (Public Law 101-625, 42 U.S.C.
§ 12701 et seq.);
(iv) 53 Pa.C.S. Ch. 60 (relating to optional affordable housing funding);
(v) the Brownfields for Housing and Redevelopment Assistance programs of the Department
of Community and Economic Development;
(vi) the Homeownership Choice Program and the PennHOMES Program of the Pennsylvania Housing
Finance Agency; and
(vii) any successor program to a program under this paragraph.
(8) The property taken is acquired pursuant to the act of June 25, 1999 (P.L.179, No.24),
known as the Economic Development Eminent Domain Law, in order to allow for the removal
of blighted properties within the borders of a former military facility located in
a county of the second class A.
(9) The property is used or to be used for any road, street, highway, trafficway or for
property to be acquired to provide access to a public thoroughfare for a property
which would be otherwise inaccessible as the result of the use of eminent domain or
for ingress, egress or parking of motor vehicles.
Cross References. Section 204 is referred to in section 207 of this title.
Notes of Decisions
In Re Opening a Private Road for the Benefit of O'Reilly, 5 A.3d 246 (Pa. 2010).
· cites it 5× “proposition that "public purpose" should be broadly construed, and relying on Kelo's deference to legislative judgments in the context of defining a public purpose, Appellee focuses on Section 2 of the EDC: [N]otwithstanding the [Pennsylvania] Legislature's intent to severely…”
Reading Area Water Auth. v. Schuylkill River Greenway Ass'n, 100 A.3d 572 (Pa. 2014).
· cites it 5× “3 The Greenway filed preliminary objections, alleging that: the taking was invalid under Pennsylvania’s Property Rights Protection Act (PRPA), 4 because it was being accomplished solely for the benefit of private enterprise, see 26 Pa.C.S. § 204(a) (generally prohibiting the use…”
Robinson Twp. v. Commonwealth, 83 A.3d 901 (Pa. 2013).
“Regarding the merits of their constitutional claim, the citizens state that Section 3241 permits a private corporation to exercise the state’s eminent domain power for the storage of its private natural gas; the private storage of natural gas, according to the citizens, does not…”
Robinson Twp. v. Commonwealth, 147 A.3d 536 (Pa. 2016).
“Citizens raised in the Commonwealth Court an additional issue of whether Section 3241 violated 26 Pa.C.S. § 204(a) (statutorily prohibiting the use of the power of eminent domain by private businesses except in limited enumerated circumstances).”
Whittaker v. Cnty. of Lawrence, 674 F. Supp. 2d 668 (W.D. Pa. 2009).
· cites it 2× “” 26 Pa. Cons.Stat. § 204(a). It does not follow, however, that actions taken in contravention of such state proscriptions are likewise taken in contravention of the Public Use Clause.”
O'Reilly v. Hickory on the Green Homeowners Ass'n, 100 A.3d 689 (Pa. Commw. Ct. 2014).
“26 Pa.C.S. § 204(a), (b)(9). This provision states that the prohibition against the use of eminent domain for private purposes does not apply where, ‘‘[t]he property is to be used for any road .”
Bear Creek Twp. v. Riebel, 37 A.3d 64 (Pa. Commw. Ct. 2012).
· cites it 2× “” 26 Pa.C.S. § 204(b)(2)(iii). The Township’s argument lacks merit.”
York City Redevelopment Auth. v. Ohio Blenders, Inc., 956 A.2d 1052 (Pa. Commw. Ct. 2008).
“— Except as set forth in subsection (b), the exercise by any condem-nor of the power of eminent domain to take private property in order to use it for private enterprise is prohibited.”
— 26 Pa. Cons. Stat. § 204(7) — 1 case
— 26 Pa. Cons. Stat. § 204(a) — 32 cases
Reading Area Water Auth. v. Schuylkill River Greenway Ass'n, 100 A.3d 572 (Pa. 2014).
“3 The Greenway filed preliminary objections, alleging that: the taking was invalid under Pennsylvania’s Property Rights Protection Act (PRPA), 4 because it was being accomplished solely for the benefit of private enterprise, see 26 Pa.C.S. § 204(a) (generally prohibiting the use…”
Robinson Twp. v. Commonwealth, 147 A.3d 536 (Pa. 2016).
“Citizens raised in the Commonwealth Court an additional issue of whether Section 3241 violated 26 Pa.C.S. § 204(a) (statutorily prohibiting the use of the power of eminent domain by private businesses except in limited enumerated circumstances).”
Whittaker v. Cnty. of Lawrence, 674 F. Supp. 2d 668 (W.D. Pa. 2009).
“” 26 Pa. Cons.Stat. § 204(a). It does not follow, however, that actions taken in contravention of such state proscriptions are likewise taken in contravention of the Public Use Clause.”
— 26 Pa. Cons. Stat. § 204(b) — 4 cases
Reading Area Water Auth. v. Schuylkill River Greenway Ass'n, 100 A.3d 572 (Pa. 2014).
“3 The Greenway filed preliminary objections, alleging that: the taking was invalid under Pennsylvania’s Property Rights Protection Act (PRPA), 4 because it was being accomplished solely for the benefit of private enterprise, see 26 Pa.C.S. § 204(a) (generally prohibiting the use…”
— 26 Pa. Cons. Stat. § 204(b)(2) — 3 cases
Reading Area Water Auth. v. Schuylkill River Greenway Ass'n, 100 A.3d 572 (Pa. 2014).
“3 The Greenway filed preliminary objections, alleging that: the taking was invalid under Pennsylvania’s Property Rights Protection Act (PRPA), 4 because it was being accomplished solely for the benefit of private enterprise, see 26 Pa.C.S. § 204(a) (generally prohibiting the use…”
— 26 Pa. Cons. Stat. § 204(b)(2)(i) — 5 cases
— 26 Pa. Cons. Stat. § 204(b)(2)(iii) — 5 cases
Bear Creek Twp. v. Riebel, 37 A.3d 64 (Pa. Commw. Ct. 2012).
“” 26 Pa.C.S. § 204(b)(2)(iii). The Township’s argument lacks merit.”
— 26 Pa. Cons. Stat. § 204(b)(6) — 1 case
— 26 Pa. Cons. Stat. § 204(b)(7) — 2 cases
— 26 Pa. Cons. Stat. § 204(b)(7)(i) — 2 cases
— 26 Pa. Cons. Stat. § 204(b)(9) — 7 cases
In Re Opening a Private Road for the Benefit of O'Reilly, 5 A.3d 246 (Pa. 2010).
“proposition that "public purpose" should be broadly construed, and relying on Kelo's deference to legislative judgments in the context of defining a public purpose, Appellee focuses on Section 2 of the EDC: [N]otwithstanding the [Pennsylvania] Legislature's intent to severely…”
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