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Payne v. Kassab

Citation: 6 ELR 20796
No. No. 25, 361 A.2d 263/468 Pa. 226, (Pa., 07/08/1976)

The court affirms the trial court and dismisses plaintiffs' complaint for an injunction to halt a road widening project that would take land from a common used as a public park and dedicated to the public benefit.

Plaintiffs sought to block the Pennsylvania Department of Transportation's (Penn DOT) plan to widen a street bordering the River Common, a park area in Wilkes-Barre that had been set aside as a public common in 1807. The plan will take .59 acres from the approximately 32 acres of the common. At the time of adoption of the plan, Penn DOT, pursuant to the requirements of the Act of May 6, 1970, P.L. 356, No. 120, § 13(b), as amended, 71 P.S. § 512(b) (supp. 1975-76) [Act 120], filed findings that the plan would have some adverse effects on the River Common but that no feasible alternative for the needed work existed and all reasonable steps to minimize the adverse effect had been taken. The court reviews the findings of the trial court to determine whether its conclusions are reasonably derivative from the record.

Plaintiffs' first claim was that taking the property for the street-widening project violates the statutory dedication of the land as a public common because the property is to be put to a use other than in accordance with the original terms of the dedication. Plaintiffs argued that this violation has the effect of revoking the dedication. The court makes the distinction that the property is not to be taken for a private use and that in certain circumstances the diversion of dedicated land from one public use to another may be approved. The court concludes that here there was no intent on the part of the original drafters to preclude improvement of a street that has been a public thoroughfare through the common from the beginning. In addition, because the plan includes work to preserve and improve the common, its essential character will remain unaltered.

Secondly, plaintiffs argued that Penn DOT abused its discretion and violated its obligations under the Act of 1970 by failing to consider alternatives, failing to minimize adverse effects, and failing to follow proper procedures. The court, looking at the record of action taken by Penn DOT, agreed with the trial court that every requirement of Act 120 both in letter and in spirit, was met. Not only was the trial court's conclusion that the plan makes reasonable efforts to hold the adverse effects to a minimum fully warranted, but the public hearings and local approvals were adequate in form and substance. In striking a balance between the benefits and detriments of the project, the record supports the conclusion that Penn DOT complied with Act 120 and did not abuse its discretion.

Plaintiffs' third claim was the the Commonwealth, through Penn DOT, violated its duties as a public trustee of the state's natural resources, as provided by Article I, § 27 of the Pennsylvania Constitution. The court, in deciding that merely having a common right to a protected value that is about to be invaded gives no automatic right to relief, finds that Pennsylvania must perform a number of duties for the benefit of the people including the maintenance of highways. Since a balancing is required, compliance with the evaluative procedures of Act 120 will prevent violation of the broad constitutional public trust because every feasible alternative will be tested and adverse impacts will be minimized.

A dissent argues that the widening violates the statutory dedication of the land because the majority incorrectly equates "public use" with "public common." In addition, this is not a de minimis taking, as the majority implies, and Penn DOT has failed to prove that there were no feasible alternatives.

The full text of this opinion is available from ELR (12 pp. $1.50, ELR Order No. C-1089).

Counsel for Appellants
James F. Geddes, Jr.
James, Silverblatt & Townend
14th Floor, United Penn Bank Bldg.
Wilkes-Barre PA 18701
(717) 823-5181

Counsel for Appellees
Gregory S. Ghen
Pennsylvania Department of Transportation — Legal
Room 214, Capital Associates Bldg.
Harrisburg PA 17120
(717) 783-1322

Chester B. Muroski, Asst. City Solicitor
Suite 628, United Penn Bank Bldg.
Wilkes-Barre PA 18701
(717) 825-5674

Pomeroy, J. joined by Eagen, O'Brien, Nix, and Manderino, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]