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decided: April 3, 1973.


Appeal from the Order of the Court of Common Pleas of Adams County, in case of Commonwealth of Pennsylvania by the Honorable Milton J. Shapp, Governor, and the Honorable J. Shane Creamer, Attorney General and as Trustee for the People of the Commonwealth v. National Gettysburg Battlefield Tower, Inc., Thomas R. Ottenstein, Leroy E. Smith, Apple County Lodge, Inc., Jack Maitland and Hans Enggren, George A. Moose and Elizabeth Moose, trading and doing business as Stonehenge Motel and Restaurant, No. 2 July Term, 1971.


J. Shane Creamer, Attorney General, with him Paul J. Carey, Jr., Deputy Attorney General, and Ed Weintraub, Deputy Attorney General, for appellant.

Jerome H. Gerber, with him Handler, Gerber, Widmer and Weinstock, for appellees.

Louis J. Lefkowitz, Attorney General, with him Samuel A. Hirshowitz, First Assistant Attorney General of the State of New York, and Philip Weinberg and Joel H. Sachs, on an amicus curiae brief for the State of New York, for reversal.

Robert E. Woodside, on an amicus curiae brief for himself, for affirmance.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers. Concurring Opinion by President Judge Bowman. Concurring and Dissenting Opinion by Judge Mencer.

Author: Rogers

[ 8 Pa. Commw. Page 233]

As the pleasant Pennsylvania countryside within the triangle of the Alleghenies, the Susquehanna and the Maryland line provided the site for the maneuvers of two great armies in the last days of June 1863, and as the fields around Gettysburg provided the place for the decisive three first days of July of that year, this lawsuit is a testing ground of important and fundamental interests, one old the other new, in serious conflict. The appellees, National Gettysburg Battlefield Tower, Inc., and its individual principals, desire to construct a tower 307 feet high at a location in the area of the fighting of July 3, 1863, 400 feet from the nearest boundary of the Gettysburg National Military Park, 750 feet from the Gettysburg National Military Cemetery, 1200 feet from the place where President Lincoln

[ 8 Pa. Commw. Page 234]

    delivered the Gettysburg Address and 2500 feet from the hilltop where Pickett's charge broke against valiant Massachusetts, Minnesota, Michigan and Pennsylvania regiments. The Commonwealth by its Attorney General has instituted this action to restrain the erection of the tower.

There are no regulations of Cumberland Township, Adams County, the municipality in which the site is located, governing the construction of towers; indeed, there is not one zoning ordinance in all of Adams County. The plans for the tower have, however, been approved for safety by the Department of Labor and Industry of the Commonwealth. By familiar principles, the appellees, as the owners of the site, may use their property as they please, provided they do not interfere with their neighbors' reasonable enjoyment of their properties and subject to reasonable regulations for the public good imposed under the police power of the State, of which there are none here. This right derives from Article I, Sections 1 and 10 of the Pennsylvania Constitution*fn1 and the Fourteenth Amendment*fn2 to the Federal Constitution.

The Commonwealth's case is based entirely upon Article I, Section 27 of the State Constitution ratified by the people on May 18, 1971 and providing: "The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural

[ 8 Pa. Commw. Page 235]

    resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people." It is contended by the Commonwealth that this new provision of fundamental law reserved new rights for the people to be asserted through their government. It set about to prove a denial of the peoples' right to the preservation of the natural, scenic, historic and aesthetic values of the Gettysburg Battlefield environment by the opinions of persons who believed that the project would injure those values. The Honorable John A. MacPhail, President Judge of the Court of Common Pleas of Adams County, concluded that the Commonwealth had not met its burden of proving that the tower would indeed so injure the values sought to be protected as to justify the extraordinary relief demanded.

The purpose of the tower is to provide a place far above the battlefield to which persons may, for a price, be taken to observe the site of and be instructed concerning the battle of Gettysburg. The topmost of three observation decks will be one hundred feet higher than Big Round Top, the highest natural point in the area. The core of the tower will be elevator shafts enclosed in wire mesh. Lending support to the top will be a curvilinear arrangement of pipes from ground to summit. The general shape will be that of an attenuated hourglass, solid only at bottom and top. The site now suggested is the third proposed, the appellees having on two prior occasions relocated at the request of the National Park Service. Indeed, the appellees had commenced construction of a tower at a residential site. On June 14, 1971, the Secretary of the Interior of the United States wrote to the Governor of Pennsylvania expressing his Department's and its National Park Service's concern with the tower then being erected and

[ 8 Pa. Commw. Page 236]

    seeking the State's intervention to block its construction. In early July 1971, the appellees and the United States entered into a written agreement the terms of which for our purposes are adequately described by a Department of Interior, National Park Service, News Release for Sunday, July 11, 1971, as follows:


"The firm planning to build a tower overlooking Gettysburg National Military Park, Pa., has reached an agreement with the government to move from a location near the heart of the famous Civil War battleground to one screened by trees from the visitors center, George B. Hartzog, Jr., Director, National Park Service, announced today.

"The agreement between the National Park Service and businessman Thomas R. Ottenstein, Silver Springs, Md., will change the construction site to one preferred by the Interior Department. It was reached through negotiations between Ottenstein and Interior Department Special Assistant J. C. Herbert Bryant, Jr.

"Its terms provide that Ottenstein will stop building at the present site and convey the three acres to the National Park Service, which will use the property to provide much needed additional parking for battlefield visitors.

"Hartzog said that additional advantages of the new site are relief of projected traffic congestion and the provision of enough parking to accommodate tourist tower visitors.

"As earlier planned, the tower would have loomed over the battlefield visitor center and the site of Abraham Lincoln's Gettysburg Address, Hartzog said.

"'The old location is just west of Emmittsburg Road which is the main entrance to Gettysburg,' he

[ 8 Pa. Commw. Page 237]

    said, 'and the location of the tower threatened major traffic congestion.'

"'The new location, east of the Taneytown Road and behind trees near the base of a hill, will hide the base of the tower and its parking lot from the main battlefield area.'

"The National Park Service will permit a right-of-way for limited access from the Taneytown road to the new observation tower site.

"Hartzog said the right-of-way will consist of a one-way, one-lane road for vehicular traffic not exceeding 12 feet in width, and a sidewalk for pedestrians, and it will be landscaped.

"Hartzog also announced that Ottenstein will set up a nonprofit corporation or foundation to help support historically related institutions and activities at the Battlefield, including the Eisenhower National Historic Site.

"Under the agreement, five percent of the taxable income from the tower operation will be utilized for these purposes." The new site referred to is the location now proposed.

The Commonwealth's witnesses were persons of eminence in their professions or occupations: architects Louis I. Kahn and Vincent Kling; historian and author Bruce Catton; historians Sylvester K. Stevens and Charles H. Glatfelter; the Pastor of a Gettysburg Presbyterian congregation, the Reverend Robert A. MacAskill; a theologian and teacher at the local Lutheran Seminary, Robert Jansen; the Commonwealth's Director of State Parks, Conrad Lickel; and Federal Park Administrators Thomas J. Harrison and George Hartzog. Each of these gave his opinion of the effect the proposed tower would have on the values protected by Article I, Section 27 of the Constitution within his area of competence. We have examined their testimony, as did the Chancellor, with the care and respect their

[ 8 Pa. Commw. Page 238]

    achievements merit. A fair, brief statement of this testimony is, we believe, the following.

Mr. Kahn studied the blueprints for the tower and concluded that the structure is carefully planned with the intention of being gossamer or of trying to disappear. He nevertheless believes that it would be a marked intrusion on the pastoral serenity of the battlefield scene and out-of-scale with its surroundings. Mr. Kahn's viewpoint was from that of one walking the battlefield in a state of sympathy with the combatants of 1863 and of reverence for what occurred there, who, looking up to the tower would experience an intrusion upon those sentiments by this "scribbling in the sky." The values of Gettysburg for Mr. Kahn lie in its pastoral setting upon which, in his opinion, the presence of the tower would be an unwanted reminder of utilitarian interests.

Mr. Kling finds the tower as designed inappropriate for the site and lacking in esthetic qualities. His viewpoint was of one looking at the tower over acres of greens. He concedes that the hourglass shaped wrapping for the structure "has integrity," but believes that the interior elevator shaft would overwhelm the outside laciness. Although not opposed to towers he believes this one to be too big, ungainly in its core and commercialistic at the top.

Mr. Catton stated that the great historical and cultural values of Gettysburg are in its having witnessed the climactic struggle of the Civil War, which he believes was the biggest single event in the American experience. In order fully to experience those values Mr. Catton believes it necessary for one to go on the field in person, to brood while there, to translate one-self into the 1860's and to feel the spirit and ...

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