In re Condemnation of Right of Way for Legislative Route 58018

No. 1403 C.D. 1976 (375 A.2d 1364, 31 Pa. Commw. 275) (Pa. Commw. Ct. July 25, 1977)

ELR Digest

A declaration of taking filed by the Pennsylvania Department of Transportation in connection with a project to repair and replace bridges along a short, unpaved legislative route through an area of unusual scenic beauty does not violate the state's constitutional duties as public trustee of the state's natural resources.

Appellant Department of Transportation determined in 1971 the need for repair of one bridge along the route, and appellant complied with § 2002(b) of the Administrative Code, 71 P.S. § 512(b), requiring a determination of various social, esthetic, and environmental effects of "any transportation route or program requiring the acquisition of new or additional right-of-way." Before the work was begun, Hurricane Agnes intervened, and the area was included in declarations of extreme emergency and disaster, which called for urgent reconstruction without regard to "time consuming procedures and formalities prescribed by law, mandatory constitutional provisions excepted." Revised plans were drawn up and environmentally protective provisions were included but, notwithstanding several local meetings to discuss environmental concerns, appellant did not comply with § 2002(b). Denying appellant's motion to dismiss, the Tioga County Court of Common Pleas held that it had jurisdiction to adjudicate a challenge to appellant's power to complete statutory requirements of the highway planning process, that ordinarily the proposal was subject to § 2002(b), that the declaration of emergency did not excuse noncompliance with § 2002(b), and that the proposal would violate article I, § 27 of the Pennsylvania Constitution.

Reversing the lower court, the commonwealth court agrees with appellant that challenges to matters within the planning aspect of roadway construction are collateral to condemnation proceedings and justiciable only through proceedings in equity, rather than as preliminary objections herein. Thus, appellant's motion to dismiss for lack of jurisdiction should have been granted. Secondly, the court agrees with appellant that the proposed project is not a "transportation route or program" subject to § 2002(b), because the land area is minimal, and the environmental, social, and economic impacts of the project will be slight. Cowell v. Commonwealth, 6 Pa. Commw. 574, 297 A.2d 529 (1972).

The court decides the constitutional question by the test enunciated in Payne v. Kassab, 11 Pa. Commw. 14, 29-30, 312 A.2d 86, 94 (1973). Since the project does not fall within the scope of § 2002(b), appellant has complied with all applicable statutes and regulations relevant to the protection of natural resources. Secondly, appellant has made reasonable efforts to reduce the environmental incursions to a minimum in its construction procedures. Finally, there was no abuse of discretion in allowing the plan to proceed further.

The decision of the lower court is reversed, and the preliminary objections to appellant's taking are dismissed.

The full text of this opinion is available from ELR (6 pp. $0.75, ELR Order No. C-1135).

Counsel for Appellant Pennsylvania Department of Transportation
James J. Kutz, Ass't Attorney General
Department of Transportation
1200 Transportation & Safety Bldg., Harrisburg PA 17120
(717) 787-5574

Counsel for Apellees Condemnees
Robert F. Cox
Cox, Wilcox, Owlett & Lewis
19 Central Ave., Wellsboro PA 16901
(717) 724-4123

Wilkinson, J., with Bowman, P.J., Crumlish, Kramer, Mencer, Rogers, and Blatt, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]