Township of Lower Macungie, Lehigh County

In Township of Lower Macungie, Lehigh County, 717 A.2d 1105 (Pa. Cmwlth. 1998), the Township of Lower Macungie Lower Macungie Township had filed a declaration of taking "to acquire a permanent easement on the subject tract for a public road, an extension of Millcreek Road, and installation and use of public utilities." Id. at 1106. East Penn School District's preliminary objections were overruled by the Court of Common Pleas of Lehigh County which concluded that "because no building used as a public or parochial school or an educational or charitable institution currently occupied the subject property, the township Lower Macungie was not precluded from placing a road through said property." Id. at 1106. Further, the court found that "since the East Penn school district acquired the subject property in 1991, it had been used for private farming with no immediate plans for the construction of school facilities" and that "the East Penn school district intended ultimately to use the property for community recreational purposes rather than for school-related facilities." Id. at 1106. On appeal, East Penn School District argued: Under The Second Class Township Code, the Lower Macungie township lacks authority to condemn the East Penn school district's public property. In this regard, the East Penn school district relies upon Section 2304(d) of The Second Class Township Code, 53 P.S. 67304(d), as prohibiting the placement of a road 'through any grounds occupied by a building used . . . as a public or parochial school, educational or charitable institution . . . unless the consent of the owner or corporation or person controlling the premises is first secured.' Finally, under the Public School Code, the Lower Macungie township lacks authority to appropriate the school district's property. Issues analogous to those now before us arose in Edgewood Borough, which preceded enactment of the Eminent Domain Code, but which is still applicable, especially on matters not addressed by the Eminent Domain Code. In Edgewood Borough, the Supreme Court reasoned that 'in the absence of some statutory provision expressly or by implication forbidding it, property devoted to one public use may, under general statutory authority, be taken for another public use, when the taking will not materially impair or interfere with, the use already existing, and is not detrimental to the public.' Id. at 269, 178 A. at 384. In the present case, no school building occupied the subject tract at the time of the Lower Macungie township's condemnation. In fact, the subject tract, although owned by the East Penn school district was being privately used as farmland, which use negates the East Penn school district's assertion of the property's public rather than private character. . . . We conclude that although the subject tract is owned by the East Penn school district, the latter cannot block the Lower Macungie township from taking a portion of said tract for construction of a needed roadway, considering that no school structure has yet been built upon the subject tract, and that, in any event, the Lower Macungie township's proposed road would not prevent construction of school facilities in the future. Lower Macungie, 717 A.2d at 1106-08.