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At a special meeting Monday, Jan. 16, 2017, the Red Lion Borough Council again voted to use eminent domain, approving an ordinance that was vetoed last month by the former mayor. The York DIspatch

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The Red Lion Borough Council has again voted in favor of an eminent domain ordinance that would allow the borough to claim a right to part of a couple's property.

The council voted 4-3 Monday, Jan. 15, in favor of the ordinance. 

The vote comes just a few weeks after former Red Lion Mayor Steven E. Kopp vetoed an eminent domain ordinance passed by the borough Wednesday, Dec. 27.

Last week, the council advertised a special meeting for Monday, Jan. 15, to again consider the ordinance.

Scott Thompson and his wife, Sandra Graham, joint owners of ArthurLee LLC, sued Red Lion last year for trespassing after the borough built a parking lot against one of their company's buildings, the former Zarfos furniture store on West Broadway.  

Although the borough had made the case that its actions weren't causing harm to the building, Common Pleas Judge Christopher Menges ruled in ArthurLee's favor, pointing out that, under state law, a subject is liable to another for trespass regardless of whether the trespass causes harm.

Under the ordinance passed Monday, the borough could claim a right to part of the property.

“In other words, the condemnation is to provide damages for the legal right to have the dirt against the building," borough solicitor Michael Craley said during Monday's meeting.

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Red Lion Borough Council president Tony Musso talks to reporters following the council's vote to use eminent domain.

Meeting: Thompson was one of the few residents speaking Monday. He spoke multiple times, asking whose idea it was to pile the dirt against his building.

“Which council members, which part of this body, decided to knowingly trespass and use part of our building as a retaining wall?" he asked.

"We don't know the details," council president Tony Musso said after repeated questioning from Thompson.

More: Red Lion to hold special meeting to reconsider eminent domain

More: Facing trespass suit, Red Lion looks to eminent domain

Thompson also said he believed that the borough using eminent domain would not stop the effects the soil will have on the building.

“Over time, it will push, it’s guaranteed," he said.

Borough engineer Jeff Shue, however, claimed that the soil was "static" and that it won't move any more.

“Right now, that wall is seeing the loading it will see for 100 years," he said.

Both Thompson and Craley said Monday that the borough's idea to pursue eminent domain came at the recommendation of the insurance company. 

Future:  The borough council's vote to use eminent domain came after Menges' ruling and ahead of a scheduled Wednesday, Jan. 17, hearing for relief in the trespass suit.

Thompson said Tuesday, Jan. 16, that that meeting will no longer be held.

“They canceled that because of the use of eminent domain," he said. Thompson said eminent domain supersedes the judge's ruling.

Thompson said he had 30 days from the filing of the ordinance to present preliminary objections to the use of eminent domain. If the court agrees with the borough's use of eminent domain, then he will be working on the correct compensation for the borough's taking.

If the borough's use of eminent domain is rejected, he said, then their original case will go back to county court.

Thompson said he believes in using eminent domain for some things, but not in this case, which he called "egregious misuse."

Speaking to reporters after the meeting, Musso said the borough is still liable for any damages to Thompson's property. He said that's what is next for the borough in this case.

“We assess if there’s any damages, and if there are, the borough will pay for them or make it right,” he said.

He also emphasized the borough is not taking the whole building, only the part of the parking lot.

Musso also expressed doubt that there were many borough residents at the meeting. He estimated five of the people in attendance were residents.

"If our residents would have felt that we're shafting somebody, it would have been a lot more than just five people that live in the borough here," he said.

Both Musso and Thompson said they don't expect the new mayor, Walter Hughes Jr., to veto the decision.

A message left for Hughes on Tuesday afternoon seeking comment was not immediately returned.

Background:  The original ordinance passed Dec. 27 would have allowed the borough to "transmit soil load surcharges of a parking lot onto lands of ArthurLee." The new ordinance passed Monday states the same thing.

But according to eminent domain code, the borough also would be required to pay the business owners fair compensation plus damages.

Thompson claimed at the Dec. 27 meeting that the borough had "about a half a million pounds of dirt" pushed up against the wall of his 112-year-old building, which was being used as a retaining wall.

Kopp vetoed the previous ordinance passed by the borough Dec. 27.

"You do this to one party and property owner — who's next?" Kopp asked in explaining his veto.

Borough solicitor Craley said in using eminent domain, the borough hoped to avoid litigation that might require removal of the lot, which Musso alleged could cost the borough hundreds of thousands of dollars.

— Reach Christopher Dornblaser at cdornblaser@yorkdispatch.com or on Twitter at @YDDornblaser. 

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