In re Condemnation by Commonwealth

349 A.2d 819, 22 Pa. Commw. 440, 1975 Pa. Commw. LEXIS 1353
CourtCommonwealth Court of Pennsylvania
DecidedDecember 29, 1975
DocketAppeal, No. 147 C.D. 1975
StatusPublished
Cited by11 cases

This text of 349 A.2d 819 (In re Condemnation by Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Condemnation by Commonwealth, 349 A.2d 819, 22 Pa. Commw. 440, 1975 Pa. Commw. LEXIS 1353 (Pa. Ct. App. 1975).

Opinion

Opinion by

President Judge Bowman,

This appeal evolves from a condemnation of a portion of land owned by appellants, Stephen and Elizabeth Becker, by the Pennsylvania Department of Transportation (PennDOT). Appellants’ property was designated to be part of a project to widen existing Legislative Route 201 in Chester County from the Borough of Phoenixville to East Vincent Township, a distance of approximately 4.8 miles, a wholly state financed project.

During the design phase of a highway project, such as in this case, The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. §512 (b) provides for public hearings to be held by PennDOT to consider certain environmental, social and economic factors before the finalization of highway project plans. More important to this matter, 71 P.S. §512 (b) requires PennDOT to:

“[Fjollow the hearing procedures now or hereafter required by the Federal Government for Federal-aid transportation programs pursuant to Titles 23 and 49 of the United States Code as amended and the regulations and procedures thereunder even though the transportation route or program does not contemplate the use of or actually employ Federal funds.”

[443]*443It is these procedures that generated this appeal.

23 U.S.C. §128 as incorporated by our Administrative Code mandates public hearings or an opportunity for such to be afforded on highway projects. The applicable regulation thereunder covering what is an “opportunity” for public hearing, states:

“ (a) A State may satisfy the requirements for a public hearing by (1) holding a public hearing, or (2) publishing two notices of opportunity for public hearing and holding a public hearing if any written requests for such a hearing are received.” 23 C.F.R. §790.6 (a) (Emphasis added.)

To comply with such procedure, PennDOT caused to be published in newspapers of general circulation within the affected area of Chester County, notices for the opportunity for public hearing on the project. No requests for hearing were received by PennDOT, and, therefore, none were held concerning the undertaking involved here. As appellants concede, PennDOT did consider the twenty-three social, environmental, and economic factors required by The Administrative Code to be the subject of a public hearing, and in addition made a finding that no adverse environmental impact was likely to result from the project.1

After the design was approved by PennDOT, condemnation proceedings were initiated against the land of appellants and others along Route 201 by filing a declaration of taking as mandated by Section 402 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-402. Appellants then filed preliminary objections to the declaration of taking pursuant to Section 406 of the Eminent Domain Code which included an objection that the “Environmental Rights Amendment”2 was violated.

[444]*444The court below dismissed appellants’ preliminary objections and this appeal followed.

Appellants assert that the want of personal notice of an opportunity for hearing them as to the environmental impact of the project violates their due process rights. This, they argue, makes the condemnation proceedings a nullity.

At this juncture, we disagree with the court below in concluding that appellants’ contentions are properly the subject of preliminary objections to a declaration of taking.

Section 406 of the Eminent Domain Code, 26 P.S. §1-406, makes four matters the subject of preliminary objections to a declaration of taking:

1. Power and right of the condemnor to appropriate the condemned property.
2. Sufficiency of the security.
8. Any other procedure followed by condemnor.
4. The declaration of taking.

The nature of the hearing appellants claim to be deprived of must be analyzed in terms of these four objections to determine whether appellants’ argument can be raised by preliminary objections.

This Court has previously noted that the hearings provided by 71 P.S. §512 (b) (Administrative Code hearings), are designed to afford the public and affected parties knowledge of a planned improvement and a right to be heard. Conroy-Prugh Glass Co, v. Commonwealth, 7 Pa. Commonwealth Ct. 66, 298 A.2d 672 (1972). Similarly, the Federal courts in discussing 23 U.S.C. §128 (the statute referenced by The Administrative Code) have commented on the purpose of the highway hearing.

“This history shows a long-standing and ever increasing congressional concern that highway planners be directly and publicly confronted with opposing views, to ensure that the planners take close account of the objections and desires of individual citizens affected [445]*445by the proposed projects during the planning process.” D.C. Federation of Civic Associations, Inc. v. Volpe, 434 F.2d 436, 441 (D.C. Cir. 1970).

In short, the highway hearings appear to envision an exchange of ideas and a data collection process to aid PennDOT in discharging its planning duties.3

Considering the first type of allowable preliminary objection, the power or right of the condemnor, the appellants are not actually challenging the power or right of PennDOT to take their land. This is provided by statute, Act of May 29, 1945, P.L. 1108, as amended, 36 P.S. §2391.8. More accurately, they are challenging a collateral procedure to be followed as part of highway planning. Likewise, the challenge is not to sufficiency of the security or the declaration of taking itself. Therefore, if appellants’ argument is to fit into one of the allowable categories of preliminary objections, it must qualify as an objection to “any other procedure followed by the condemnor”.

However, in Simco Stores, Inc. v. Philadelphia Redevelopment Authority, 8 Pa. Commonwealth Ct. 374, 379, 302 A.2d 907, 910 (1973), aff’d., 455 Pa. 438, 317 A.2d 610 (1974), this Court stated:

“The term 'any other procedure’ refers to procedures such as are set forth in Sections 403 and 405, inclusive, and other procedures that may be directly related to the filing of the declaration of taking.”

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Related

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185 A.3d 478 (Commonwealth Court of Pennsylvania, 2018)
Pennsylvania Environmental Defense Foundation v. Commonwealth
108 A.3d 140 (Commonwealth Court of Pennsylvania, 2015)
Grimaud v. Department of Environmental Resources
638 A.2d 299 (Commonwealth Court of Pennsylvania, 1994)
In Re Condemnation by the Urban Redevelopment Authority
594 A.2d 1375 (Supreme Court of Pennsylvania, 1991)
In re Condemnation by the Commonwealth
547 A.2d 867 (Commonwealth Court of Pennsylvania, 1988)
David v. Philadelphia Electric Co.
535 A.2d 729 (Commonwealth Court of Pennsylvania, 1988)

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Bluebook (online)
349 A.2d 819, 22 Pa. Commw. 440, 1975 Pa. Commw. LEXIS 1353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-condemnation-by-commonwealth-pacommwct-1975.