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MARION WOODWARD PAYNE ET AL. v. JACOB G. KASSAB (07/06/76)

decided: July 6, 1976.

MARION WOODWARD PAYNE ET AL., APPELLANTS,
v.
JACOB G. KASSAB, INDIVIDUALLY AND AS SECRETARY OF THE PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, ET AL., APPELLEES. APPEAL OF FRANCES PHELPS WALLER ET AL.



COUNSEL

James F. Geddes, Jr., Wilkes-Barre, for appellants.

Gregory S. Ghen, Penn DOT-Legal, Harrisburg, for appellee, Jacob G. Kassab, Etc.

Chester B. Muroski, Asst. City Sol., Wilkes-Barre, for appellee, City of Wilkes-Barre.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., concurs in the result. Roberts, J., filed a dissenting opinion. Jones, C. J., did not participate in the consideration or decision of this case.

Author: Pomeroy

[ 468 Pa. Page 229]

OPINION OF THE COURT

By means of a complaint in equity filed in the Commonwealth Court,*fn1 several residents of the City of Wilkes-Barre and a group of students from Wilkes College in Wilkes-Barre have sought to halt a street-widening project proposed by the Pennsylvania Department of Transportation (Penn DOT) for River Street in Wilkes-Barre. After a trial before Judge Mencer sitting as chancellor an adjudication, including a decree nisi, was filed dismissing the complaint. Payne v. Kassab, 11 Pa. Commw. 14, 312 A.2d 86 (1973). Plaintiffs' exceptions thereto were dismissed and the decree nisi was made final by the entire court sitting en banc. Payne v. Kassab, 14 Pa. Commw. 491, 323 A.2d 407 (1974). This appeal followed.*fn2

Appellants protest the River Street project because of the allegedly negative impact it will have on the historical, scenic, recreational and environmental values of an area of Wilkes-Barre known as the River Common. The River Common is a tract of approximately thirty-two acres which is bounded on the north and south by North and South Streets respectively, on the west by the Susquehanna River and which has as its eastern boundary the easterly curb of River Street. Approximately eleven acres of the Common area consist of the Luzerne County courthouse, railroad tracks and various streets.

[ 468 Pa. Page 230]

The remaining twenty-one acres are a tree-lined park area utilized for many and varied recreational and leisure activities. Also contained within the boundaries of the Common are several historical markers and monuments.

As mentioned, River Street, part of the Common since the Common's inception,*fn3 forms the entire eastern boundary of the Common. River Street and the bordering areas are described by the chancellor in uncontested*fn4 findings of fact as follows:

"17. River Street is a multilane roadway which passes through the River Common along its eastern side as well as beyond the limits of the park in both a northerly and southerly direction. It varies from three to four lanes along the length of the Common. At South Street, River Street is forty-six feet six inches wide, tapering to forty-two feet in width five hundred feet north of South Street. It is at this point that the proposed project will commence. The existing street continues to gradually narrow down to thirty-two feet at Market Street. North of Market, River Street is thirty feet wide until it gradually widens to thirty-eight feet six inches at North Street. This allows for four lanes of traffic between South Street and Northampton Street and three lanes of traffic for the remainder of the distance.

"18. River Street is bordered by tree-lined sidewalks on both sides, and a tree lawn is between these sidewalks and River Street. The trees in both of these tree lawns are in variable conditions. . . .

"20. On the west side of River Street, the side of the River Common, the following significant structures

[ 468 Pa. Page 231]

    and features may be found: On the corner of North Street and River Street is the front of the Luzerne County Courthouse, with a cement sidewalk and steps leading to the Courthouse. The cement sidewalk continues in a southerly direction to the tracks of the Wyoming Valley Railroad Company. An earthen driveway to the rear of the Courthouse is immediately adjacent to the tracks. Three large trees and the ends of several paths leading into the Common lie just south of the tracks. The sidewalk becomes a cinder walkway for the rest of the length of the project. A low stone walk divides the area of the cinder walk from the rest of the Common for most of the remaining length of the project. At Market Street, the stone wall terminates and the cinder walk broadens and merges with the sidewalk of the Market Street bridge. Granite railing borders the sidewalk area in the vicinity of this intersection. These facilities are paralleled on the south side of the bridge, where the stone wall begins again. A one-story building with flood protection equipment lies just sought of the bridge. The stone wall terminates just south of Northampton Street and there is no divider for the remainder of the Common.

"21. On the [east] side of River Street, there is a concrete sidewalk throughout. North Street, Jackson Street, the railroad tracks, West Union Street, Market Street, Northampton Street, and South Street intersect with River Street. Between North Street and Jackson Street, Luzerne County maintains a parking lot. Kings College lies south of Jackson Street. Various properties, with well established front lawns continue to a point just north of Market Street. At that point, there is a medium-sized hotel (the Hotel Sterling). A gasoline station is on the south side of the intersection. For the remaining length of the project, most of the buildings are residential type structures, many owned

[ 468 Pa. Page 232]

    by Wilkes College. A Baptist Church lies just south of the Market Street intersection."

As early as 1968, Penn DOT began studying proposals for the improvement of River Street,*fn5 which is considered by transportation planners to be an essential link in the regional transportation system of Wilkes-Barre and Luzerne County.*fn6 Although various plans were considered, only two proposals survived this initial study phase. Those two plans for the straightening and realigning of River Street were presented at a public hearing in Wilkes-Barre on April 20, 1971. The plans differed in that Scheme I involved taking property from both the west or River Common side and the east side of River Street while Scheme II entailed taking of property only from the eastern side of the street. Penn DOT recommended Scheme I because acquisition costs were significantly lower; considerably less local property tax revenue would be lost; successful reconstruction of the disrupted area to its original form seemed more likely; and fewer irremediable negative environmental effects were anticipated.

Appellants, among others, registered their opposition at the April 20th meeting and argued for either no work at all on River Street, or, in the alternative, for Scheme II, which would not impinge directly upon the River Common. After consultation with various state and local agencies,*fn7 local officials,*fn8 and local interest groups*fn9

[ 468 Pa. Page 233]

    and further study and modification of Scheme I, Penn DOT announced the adoption of that scheme on November 5, 1971. On November 12, 1971 pusuant 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. 1975-1976) [Act 120], the Secretary of Penn DOT filed his findings that the approved River Street project would have some adverse effect 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.*fn10

The plan envisions the widening and realigning of River Street to a uniform four lane road having a minimum width of forty-two feet and improvement of River Street's intersection with North and South Streets. Land from both sides of River Street will be taken with incursions of up to twelve feet, varying according to the need at various points. The total amount of land from the Common to be diverted to this use is .59 acres. Presently located in the path of the proposed fourth lane are sections of tree lawns and sidewalks. (See the chancellor's Findings of Fact Nos. 18, 20 and 21 quoted above). The plan calls for replacement of these areas once construction of the new lane is finished. The disrupted area will be recurbed and restructured. The tree lawn is to be reconstituted with twenty-eight trees replacing the twenty-three which will be removed. The whole area will be relandscaped and the stone wall bordering the sidewalk on the Common side will be reconstructed with its original materials; recent flood damage to the wall will also be repaired. Two historical markers, the historical

[ 468 Pa. Page 234]

    significance of which is unrelated to any exact location, will be moved to other points in the Common area. In addition, provision has been made that the entrance steps to the Luzerne County Courthouse at the north end of the Common will be undisturbed, with the necessary widening ...


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