PRINTER'S NO. 1882
No. 1533 Session of 2005
INTRODUCED BY WALKO, CALTAGIRONE, DENLINGER, FABRIZIO, FRANKEL,
GERGELY, JAMES, KOTIK, LaGROTTA, PISTELLA, SHANER,
T. STEVENSON, WHEATLEY AND YOUNGBLOOD, MAY 4, 2005
REFERRED TO COMMITTEE ON LOCAL GOVERNMENT, MAY 4, 2005
AN ACT
1 Amending the act of July 28, 1953 (P.L.723, No.230), entitled,
2 as amended, "An act relating to counties of the second class
3 and second class A; amending, revising, consolidating and
4 changing the laws relating thereto," further providing for
5 eminent domain.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Section 2601 of the act of July 28, 1953
9 (P.L.723, No.230), known as the Second Class County Code,
10 amended July 25, 1961 (P.L.854, No.370), is amended to read:
11 Section 2601. Eminent Domain; County May Enter Upon Land, Et
12 Cetera.--(a) In all cases where the power of eminent domain is
13 conferred upon the county by law, the county may enter upon,
14 appropriate, take, injure or destroy private lands, property or
15 material. Any such taking for the purpose of originally laying
16 out or opening of any road shall be in fee simple.
17 (b) (1) Notwithstanding any other provision of law, this
18 section includes the right of second class counties to take air
19 rights for transportation uses over or alongside railroad tracks
1 and other railroad property adjacent to the railroad tracks and
2 to construct support structures over and on the property
3 pursuant to this subsection. The following shall apply:
4 (i) Prior to initiating an action in condemnation, a second
5 class county must engage in good faith efforts to purchase the
6 air rights and to enter into agreements regarding the
7 construction of support structures on railroad property related
8 to transportation projects.
9 (ii) Condemnation and use of air rights must be effected in
10 a manner which provides a vertical separation between structures
11 built over railroad property for transportation uses and the
12 railroad property used in active railroad operations not less
13 than:
14 (A) that required to accommodate double-stack container
15 railcars; or
16 (B) the greater of any of the following requirements:
17 (I) The requirements of the Federal Railroad Administration.
18 (II) The requirements of the Federal Highway Administration
19 or any successor agency or department applicable to Federal-aid
20 highways.
21 (III) The requirements of the Pennsylvania Department of
22 Transportation.
23 (2) Notwithstanding any other provision of law, this section
24 includes the right of second class counties to take certain
25 property subject to the ownership and/or control of railroads
26 for transportation uses through the exercise of the power of
27 eminent domain pursuant to this subsection. No action taken
28 pursuant to this subsection shall interfere with railroad
29 operations on adjacent tracks within any right of way or other
30 property retained by a railroad. Prior to initiating an action
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1 in condemnation, a second class county must engage in good faith
2 efforts to enter into an agreement with the railroad to vest
3 ownership and control of the property in the second class
4 county.
5 (3) Notwithstanding any other provision of law, whenever in
6 the construction, reconstruction, widening or relocation of any
7 street, highway, bridge or tunnel, or of any part thereof, it
8 becomes necessary or appropriate to occupy part of the right of
9 way or other property of any railroad company, a second class
10 county may enter upon and occupy part of the right of way for
11 the purpose of the highway, bridge or tunnel, or part thereof
12 pursuant to this subsection. The railroad shall provide for the
13 relocation upon its remaining right of way or other property any
14 structures and facilities of the railroad located upon, in,
15 under or above the original right of way or other property at
16 the time the original right of way or other property is
17 occupied. No action taken pursuant to this subsection shall
18 interfere with railroad operations on adjacent tracks within any
19 right of way or other property retained by a railroad. A second
20 class county is authorized to enter into agreements with a
21 railroad company to provide for compensation for the expense of
22 transfer or reconstruction under this paragraph.
23 (4) In connection with the exercise of its power of eminent
24 domain to take the property of a railroad pursuant to this
25 subsection or to exercise other powers granted pursuant to this
26 subsection, a second class county is empowered to take action
27 and to commence proceedings as may be necessary or appropriate
28 to confirm that a condemnation action or relocation pursuant to
29 this subsection is not preempted by Federal law or to establish
30 the conditions under which a railroad line or other railroad
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1 property would be subject to condemnation action or relocation
2 free of Federal jurisdiction. Such actions and proceedings may
3 include the filing by the county of an action with the Surface
4 Transportation Board or any successor Federal agency or
5 department having Federal jurisdiction over railroads, for the
6 purpose of:
7 (i) effecting the adverse abandonment of railroad property;
8 or
9 (ii) obtaining a declaratory order from the Surface
10 Transportation Board or any successor Federal agency or
11 department that the proposed condemnation or relocation would
12 not be preempted by Federal law.
13 (5) Upon the acquisition of interests in property in
14 accordance with this subsection, a second class county shall be
15 authorized to enter into agreements with the Commonwealth or its
16 political subdivisions to provide for the transfer of the
17 property for transportation uses upon the receipt of appropriate
18 consideration sufficient to compensate the second class county
19 for its costs of acquisition and related costs and expenses.
20 (6) For the purposes of this subsection, the following words
21 and phrases shall have the meanings given to them in this
22 paragraph unless the context clearly indicates otherwise:
23 "Support structure," means a structure built as a result of
24 the obtaining of air rights over or alongside railroad tracks
25 and other railroad property obtained pursuant to paragraph (1).
26 "Transportation uses," means the development and construction
27 of structures, facilities and other transportation
28 infrastructure the purpose of which is to enable and to
29 facilitate the movement of people, goods or both, including
30 motor vehicle traffic, pedestrian traffic and bicycle traffic.
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1 Section 2. This act shall take effect in 60 days.
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