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News Article - December 01, 2009

JUDGE DEALS BLOW TO TINICUM, COUNTY  
By ALEX ROSE, arose@delcotimes.com

  A federal judge denied Tinicum Township and Delaware County’s request to remand a case back to state court Tuesday concerning an 84-year-old Pennsylvania statute that could bar Philadelphia International Airport from making unapproved land purchases in the township. At issue is a 1925 statute that provides first-class cities the authority to acquire lands for airports and landing fields outside their borders only “with the consent of the local authorities where such land is situated.” Tinicum and Delaware County filed for a determination on the validity of that statute in Common Pleas Court in May.

   The filing was in response to a proposed capacity enhancement plan at the airport, which could displace at least 72 residences and 3,300 jobs from the township, according to a draft environmental impact statement from the Federal Aviation Administration. Philadelphia filed a motion to remove the suit to federal court. Acting Airport Director Mark Gale said the city’s position is that the enhancement plan was developed under federal guidelines laid out in the Vision 100-Century of Aviation Reauthorization Act of 2003 and, therefore, should come under federal jurisdiction. The township, in turn, had asked that the case be remanded to state court, where county Solicitor John McBlain said zoning and land-use matters dealing with airport issues have traditionally been dealt with. But Louis H. Pollak, senior judge of the U.S. District Court for the Eastern District of Pennsylvania, denied the motion.

   He was also not convinced any case or controversy actually exists for his court to render a decision on, said township attorney Francis Pileggi, because Philadelphia has not yet made any purchases or agreements of sale with property owners in the township. Courts cannot issue “advisory opinions” on matters where there is no actual controversy, explained Pileggi, so without at least an agreement of sale in place, no basis of fact exists upon which a judge could render a decision. It was not an argument either party made, Pileggi noted, but was raised by Pollak at Tuesday’s hearing.

   Pollak gave the city until Jan. 15 to file legal arguments showing there is a case or controversy and the township was given until Jan. 22 to file a response. Scott Lewis, an attorney representing Philadelphia in the case, said the city expects to show there is an actual case or controversy that warrants the federal court’s continued jurisdiction over the matter in that supplementary briefing.

Source - Daily Tims



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