A summary of the court’s decision follows.
Groner argues that his proposed taking is nonetheless constitutional under § 204(b)(9) of the Eminent Domain Code, 26 Pa. C.S. § 204(b)(9). We do not agree. That section provides that Pennsylvania’s statutory prohibition against use of eminent domain “for private enterprise” does not apply where “[t]he property is used or to be used for any road, street, highway, trafficway or for property to be acquired to provide access to a public thoroughfare for a property which would be otherwise inaccessible as the result of the use of eminent domain or for ingress, egress or parking of motor vehicles.” 26 Pa. C.S. § 204(a), (b)(9).
The same argument that Groner asserts was made to this Court on remand from the Supreme Court in O’Reilly II, and this Court, sitting en banc, specifically rejected Groner’s argument. In re Opening a Private Road (O’Reilly), 22 A.3d 291, 296-97 (Pa. Cmwlth. 2011) [O’Reilly III]. We noted that while § 204(b)(9) shows sufficient public purpose necessary to satisfy the federal constitutional standard established in Kelo v. City of New London, 545 U.S. 469 (2005), it “does nothing to show compliance with the more stringent standard” of primary and paramount public benefit. 22 A.3d at 296.5
Because the trial court correctly applied the standards set forth by our Supreme Court in O’Reilly II, we affirm.
Read the full decision at http://www.pacourts.us/assets/opinions/Commonwealth/out/1628CD12_8-27-14.pdf