The attorney for the owners of The Outbound Station and The Couch Tomato, Michael F. Faherty, Esq., send a letter this week to the Borough of Conshohocken’s attorney Michael E. Peters, Esq., that outlined why the potential eminent domain of The Outbound Station property at 2 Harry Street should not go forward and why the borough’s ordinance does not fulfill the legal requirement to take this action.

From the letter:

Ironically, while the asserted Borough purpose included historical purposes, the Borough explicitly does not have the legal authority to condemn for any historical purposes. Pennsylvania eminent domain law authorizes Boroughs to exercise the awesome power of eminent domain for a few limited, specified purposes. 8 Pa. C.S.A. 1501(1)-(6). Furthermore, those limited authorizations are subject to strict construction. 1 Pa. C.S. 1928(b)(4) and (6). Thus, a power which is not authorized may not be used. The Borough indicated multiple possible purposes on February 2nd, none of which include any of the specific purposes authorized for Borough eminent domain use. Accordingly, historical preservation would be fully protected by The Couch Tomato and may not be furthered by Conshohocken’s use of eminent domain.

I also not that the proposed ordinance for this use of eminent domain for this small 4,979 square foot (.11 acre) property failed to list “the purpose” as required by 26 Pa. C.S.A. 302(b)(4). Instead of listing an identified, researched and needed public purpose, the proposed ordinance only listed multiple possible, future public purposes as” “…for public purpose only, including, but not necessarily limited to, public open spaces, parks, recreation, and public parking.” Such a vague assertion of potential public purpose fails to adequately state the purpose as required 26 Pa. C.S.A.(b)(4); Pennsylvania Dep’t of Transportation y Montgomery v Montgomery Township,. 655 A.2d.1086 (Pa . Commw. Ct. 1995), appeal denied, 666 A.2d 1059 (Pa. 1995); In re Condemnation of Powell, 261 A. 3d 298 (Pa. Commw. Ct. 2021).

I recognize the eminent domain powers of a Borough include condemnation for parks, playgrounds and recreational places. However, here a single, small property with an historical train station building on .11 acres, surrounded by private property, could not plausibly be asserted to be needed for an isolated park of that tiny size. Furthmore, the Pennsylvania eminent domain law looks to actual purposes rather than asserted purposes. Reading Area Water Auth. V. Schuylkill River Greenway Ass’n.. 50 A.3d 255 (Pa. Commw. Ct. 2012).

If Faherty is correct and Conshohocken’s Borough Council passes the ordinance as it has been presented, a costly lawsuit is likely to follow. Joe Collins has given every indication one will.

This is reminiscent of when in 2017 Conshohocken’s Borough Council passed an ordinance by a 4-3 vote that amended the zoning code to allow the development of a Wawa within the Residential-Office zoning district. This led to a costly legal battle and the ordinance was eventually found by the Commonwealth Court in 2021 to be spot zoning (upholding a determination of Conshohocken’s Zoning Hearing Board).

Two of the current members of the borough council voted for the ordinance that was determined to be spot zoning. The duo were then newer members of the council and are now Council President Colleen Leonard (Ward 7, D) and Council Vice-President Tina Sokolowski (Ward 3, D).

You can read the entire letter here.