City Council’s Failure to Enact Legislation Cannot Support De Facto Taking Claim

A developer could not claim it was deprived of the use and enjoyment of its land after Philadelphia City Council failed to enact legislation necessary for its development plans, an en banc Pennsylvania Commonwealth Court panel decided in Parker Ave., L.P. v. City of Philadelphia, __ A.3d __ (No. 1162 CD 2014, filed July 30, 2015). Parker Avenue, L.P. purchased a 7.62 acre parcel of park land in Philadelphia’s Germany Hill for purposes of building 48 single-family, semi-detached homes. Parker Avenue’s development plan required the paving of an adjacent unopened street to provide access to the property and other City Plan changes. The necessary ordinances were introduced to City Council but lapsed after strong opposition from the Ridge Park Civic Association and the election of a new councilperson in the Fourth District, where the property is located. Parker Avenue petitioned the trial court for appointment of a Board of Viewers, arguing that City Council’s inaction deprived it of the use and enjoyment of its property, thereby effecting a de facto taking. The trial court overruled the City’s preliminary objections and granted Parker Avenue’s petition.

On review, the Commonwealth Court reversed, holding that Parker Avenue did not suffer a de facto taking. Judge Covey, writing for the unanimous Court, explained that Parker Avenue was not entitled to the ordinances it proposed because enacting legislation is an inherently discretionary activity. Here, City Council exercised that discretion by deciding not to address the ordinances after it weighed the interests of multiple stakeholders, including the citizens of Philadelphia. The Court rejected Parker Avenue’s argument that it was deprived of all lawful use of the property, noting that Parker Avenue could still build a single dwelling. The Court pointed out that Parker Avenue purchased the property at a substantial discount, knowing that its planned development “was a risky venture given the necessary approvals needed and the community resistance before, during and after the purchase.” In sum, “nothing was ‘taken’ from Parker Avenue that it had or legitimately expected to get.”

By | 2017-05-19T22:51:27+00:00 August 19th, 2015|Categories: Municipal Law, Real Property|Tags: , , , , , |Comments Off on City Council’s Failure to Enact Legislation Cannot Support De Facto Taking Claim

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