Court Expands Condemnation Claims for Temporary Loss of Access

In June, the Pennsylvania Supreme Court issued its decision in McElwee & Son, Inc., et. al v. Southeastern Pennsylvania Transportation Authority, a.k.a. SEPTA, upholding a series of lower court rulings in favor of a landowner who had asserted a claim of de facto condemnation against SEPTA, based upon SEPTA’s activities during a long-term construction project. These activities impeded access to the landowner’s property and ultimately led to the failure of the landowner’s business. In this decision, the court appears to have strengthened the hand of parties asserting such claims in cases where the impact of a public project on a landowner’s access is substantial, even if temporary.

A de facto taking occurs when a governmental activity interferes so substantially with a party’s use and enjoyment of her property so as to constitute a compensable injury, even though the governmental entity neither condemns the property nor exercises actual control. It has been stated that there is no bright-line test to define when a de facto taking has occurred and each case must be examined on its facts. In cases where the claim is based upon a temporary loss of access, the public policy considerations weighing against compensation are based upon a recognition that the benefits of living within a municipality carry with them various shared burdens inevitably associated with the maintenance of public infrastructure, and that common good demands such projects.