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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (12/29/75)

decided: December 29, 1975.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT OF WAY, FOR LEGISLATIVE ROUTE 201, SECTION 5R/W, A FREE ACCESS HIGHWAY, AND LEGISLATIVE ROUTE 1116, SECTION 2A R/W, A LIMITED ACCESS HIGHWAY, EAST VINCENT TOWNSHIP. STEPHEN BECKER AND ELIZABETH BECKER, APPELLANTS


Appeal from the Order of the Court of Common Pleas of Chester County in case of In Re: Condemnation by the Commonwealth of Pennsylvania Department of Transportation, of Right of Way for Legislative Route 201, Section 5 R/W, a Free Access Highway, and Legislative Route 1116, Section 2A R/W, a Limited Access Highway, East Vincent Township, No. 558 of 1973.

COUNSEL

Lawrence Sager, with him Sager & Sager, for appellant.

Ronald Chesin, Assistant Attorney General, with him John M. Hrubovcak, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.

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

Author: Bowman

[ 22 Pa. Commw. Page 442]

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 4.3 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:

"[F]ollow 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."

[ 22 Pa. Commw. Page 443]

It 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.*fn1

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 ...


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