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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (07/25/77)

decided: July 25, 1977.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT OF WAY, FOR LEGISLATIVE ROUTE 58018, SECTION 002, R/W IN DELMAR TOWNSHIP. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT


Appeal from the Order of the Court of Common Pleas of Tioga County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right of Way, for Legislative Route 58018, Section 002 R/W in Delmar Township (Heise Run Road), No. 395 Civil Division 1974.

COUNSEL

James J. Kutz, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellants.

Robert F. Cox, Sr., with him Cox, Wilcox, Owlett & Lewis, for appellees.

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

Author: Wilkinson

[ 31 Pa. Commw. Page 276]

The difficult issues presented in this appeal arise from an order of the Tioga County Court of Common

[ 31 Pa. Commw. Page 277]

Pleas sustaining preliminary objections to a declaration of taking filed by appellant. The subject of this appeal is a legislative route approximately 2.7 miles long, a narrow, unpaved by-pass located within a canyon of unusual scenic beauty and travelled primarily by those seeking to enjoy the natural, unspoiled surroundings. Appellant asserts that its plan to repair and replace several small, one-lane bridges along the route and relocate the stream channel over which the bridges run is necessary to remove existing hazards. The preliminary objections of the condemnees herein allege, inter alia, that appellant has not complied with Article I, § 27 of the Pennsylvania Constitution and Section 2002 of The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 512. We must reverse the court below and dismiss the preliminary objections.

Appellant determined in 1971 that one of the bridges along the route was in need of structural repairs and proposed to construct a new bridge at the site and realign the approaches thereto. In so doing, appellant followed the procedures of Section 2002(b), 71 P.S. § 512(b) which requires 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 actual work was begun on the project, however, "Hurricane Agnes" struck in June 1972, causing substantial damage to the entire route and destroying 100 bridges in Tioga County and 300 bridges within appellant's regional district, an eight-county area which was included in both a proclamation of extreme emergency issued by the Governor of the Commonwealth and a declaration of a national disaster area issued by the President of the United States. The proclamation "urge[d] officials of flood-stricken political subdivisions of the Commonwealth to promptly act to meet the

[ 31 Pa. Commw. Page 278]

    current emergency . . . all without regard to time consuming procedures and formalities prescribed by law, mandatory constitutional provisions excepted."

The existence of hazards wrought by the flood prompted appellant to place the original project on a "deferred" status. A new plan was proposed under which appellant would repair one of the route's other one-lane bridges, replace another with a box culvert, realign, widen and resurface the approaches to such bridges and eliminate two other bridges through rechannelization of the stream. The proposal called for condemnation of 0.33 miles of right-of-way, removal of several trees and construction of temporary "run-around" roadways to accommodate heavy construction equipment. The proposal included several provisions for the protection of the environment, such as complete removal of the temporary roadway with seeding and mulching of the land so used, use of ponds and hay bales to prevent sedimentation from entering the stream during construction, installation of weathered "rustic" style guardrails esthetically compatible with the surroundings, and use of the same unpaved gravel surface as is presently found on the route. These provisions followed appellant's inquiries to environmental agencies of several states and the federal government as to standards for such roads.

Appellant met several times with concerned representatives from local groups and agreed to alter the original plans so as to preserve a stone wall and trees belonging to one of the condemnees. In addition, appellant's Secretary held a meeting in December 1972 to which a few such representatives were invited and after which the Secretary offered to relax appellant's safety standards and restore the route to its pre-flood condition of width and alignment if the ...


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