Cass Plumbing & Heating Co. v. PPG Industries, Inc.

Dissenting Opinion by

Judge Blatt:

I respectfully dissent to the majority’s disposition of Count VII of the plaintiff’s complaint. I do so because I believe that the Planning Commission’s certification of blight was an adjudication under Section 553 of the Local Agency Law, 2 Pa. C.S. §553, and required proper notice and a hearing.

The extensive powers of the Redevelopment Authority to condemn large areas of land, including those tracts of land which are safe, sanitary and prosperous but which happen to be within an otherwise blighted area, is entirely contingent on the Planning Commission’s certification of the area as blighted. Section 9(i) of the Urban Redevelopment Law, 35 P.S. §1709 (i). Because the landowners here would not have been exposed to the powers of the Redevelopment Authority but for the certification of blight, I believe that the certification constitutes a determination or ruling by an agency affecting the property rights or the immunities of the landowners, and must therefore fall within the definition of an “adjudication” under the Local Agency Law. 2 Pa. C.S. §101.

Moreover, as the majority opinion recognizes in affirming the lower court’s overruling of the preliminary objections to the appellants’ Count I, the complex activities carried on by the Redevelopment Authority incident to the Planning Commission’s certification of blight may so substantially interfere with the appellants’ property as to constitute a de facto taking. Hazleton Redevelopment Authority v. Hudock, 2 Pa. Commonwealth Ct. 670, 281 A.2d 914 (1971). Any determination by a planning commission which sets *615in motion a statutory scheme so ponderous as to create the potential for a taking clearly requires the procedural safeguards of notice and a hearing provided for by the Local Agency Law.

Finally, although the characterization of an agency’s action as an adjudication does not depend on the existence or adequacy of a later forum for reviewing such action, the forum provided for the appellants here to contest the factual validity of the certification is clearly unsatisfactory. The first opportunity they would have available to contest the Planning Commission’s certification would be by way of preliminary objections in the common pleas court to the Redevelopment Authority’s declaration of taking. Section 408 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, 26 P.S. §1-406. Yet our Supreme Court, in Simco Stores v. Redevelopment Authority of Philadelphia, 455 Pa. 438, 442, 317 A.2d 610, 612-613 (1974), restricted lower courts’ scope of review over planning commissions’ certifications of blight, stating that: “On review a condemnee should be given an opportunity to prove that a certification of blight is arbitrary or capricious. ... It does not require the lower court to substitute its discretion for that of the legislatively-granted discretion of the Commission.” As Justice Roberts noted in his dissent, this procedure “impermissibly limits the property owner to only a faint shadow of his right to judicial review.” Simco, supra, 455 Pa. at 447, 317 A.2d at 615.

It seems to me that the entire scheme for the certification of an area as blighted is weighted against the landowners in favor of the condemnor, leaving the Planning Commission and the Redevelopment Authority “with unbounded, unfettered and limitless discretionary power to appropriate and condemn as dilapidated ... as large an area as they believe can be made more prosperous.” Faranda Appeal, 420 Pa. *616295, 304, 216 A.2d 769, 774 (1966) (concurring opinion of Chief Justice Bell). I believe, therefore, that Pennsylvania should follow the example of its neighboring-states in requiring public notice and hearing concerning the condition of an urban area prior to the certification of the area as blighted for the purposes of urban redevelopment. See New Jersey Blighted Area Act, N.J.S.A. 40:55-21.1(e); New York Urban Redevelopment Corporations Act, 24 C.L.8. Priv. Hous. Fin. §203(3).

Accordingly, I would reverse the ruling of the court below in its granting of the appellees’ preliminary objection to the appellants’ Count VII and its finding that the certification of blight was not an adjudication under the Local Agency Law.