What happens when a developer needs additional land that it does not control to construct an access way in order to reach an arterial highway to make its planned shopping center a reality? The answer, obviously, is to buy an easement from the private property owner.
But what happens if the private property owner refuses to sell to the developer, or demands a price that is so unreasonable that it amounts to holding the project hostage? The answer to this common problem can be condemnation. The problem is that developers do not possess the power of eminent domain. Only the government can exercise that power and only if the purpose is for the public benefit.
This problem presented itself not long ago to the developer of Valley Gate, a mixed use, commercial development now under construction in Warrington Township. William Benner served as the developer’s land use attorney. Although the property planned for the project had frontage along a major arterial highway, municipal officials insisted that the project needed another access point to another public street. The problem was that separating the developer’s land from that street in question was a narrow strip of land owned by a private party who showed no interest in selling to a competitor.
William Benner succeeded in satisfying Township concerns that it did, indeed, possess the power to condemn a small strip of land even though superficially it appeared that the beneficiary of the condemnation was a private developer. Relying upon Appeal of Heim, and Appeal of Pine Township, that hold that a Township may exercise its eminent domain power to create a public road across privately-owned property even if a private entity – the developer – benefits as a result.