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HARDEE'S FOOD SYSTEMS v. COMMONWEALTH PENNSYLVANIA (04/07/80)

decided: April 7, 1980.

HARDEE'S FOOD SYSTEMS, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION AND TOWNSHIP OF LOWER ALLEN, RESPONDENTS



Appeal from the Order of the Department of Transportation in case of In Re: Hardee's Food Systems, Inc. v. Department of Transportation of Pennsylvania and Township of Lower Allen, May 7, 1979.

COUNSEL

Ronald M. Katzman, of Goldberg, Evans & Katzman, for petitioner.

John M. Hrubovcak, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Edward G. Biester, Jr., Attorney General, for Department of Transportation, respondent.

Robert E. Yetter, of Metzger, Wickersham, Knauss & Erb, for Lower Allen Township, respondent.

Judges Wilkinson, Jr., Mencer and MacPhail, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 50 Pa. Commw. Page 332]

Hardee's Food Systems, Inc. (petitioner) seeks review of a determination of the Department of Transportation (Department) denying Highway Occupancy Permits for the construction of two driveways from their property to Old Gettysburg Road, a state highway. We affirm.

Petitioner would like to develop a certain lot of land located in Lower Allen Township (township) for purposes of a fast food restaurant outlet. The lot in question is bounded on the east by Lebanon Avenue, on the west by Hartzdale Drive, and on the north by Old Gettysburg Road. The first two roads are under the township's jurisdiction; the third, as indicated above, is a state highway under the jurisdiction of the Department.

In pursuance of its development, petitioner submitted plans and documents to township officials who ultimately approved a development plan allowing access to the property from Hartzdale Drive and Old Gettysburg Road where as a residential property Lebanon Avenue provided the only access.*fn1 Petitioner

[ 50 Pa. Commw. Page 333]

    thereafter applied to the Department for the necessary driveway permits for two curb cuts on Old Gettysburg Road. The Department's District Engineer, by letter dated May 7, 1979, denied the requested access "[i]n light of the high volume of traffic and the fact that the property has access to two township streets." It is that determination to which the instant petition for review is addressed.

In the instant case, therefore, we are not faced with action by the state or one of its subdivisions which threatens to diminish or cut off already existing access to a state highway as in Wolf v. Department of Highways, 422 Pa. 34, 220 A.2d 868 (1966); McCrady Case, 399 Pa. 586, 160 A.2d 715 (1960); Tracy v. Department of Transportation, 43 Pa. Commonwealth Ct. 218, 402 A.2d 286 (1979). Instead we are faced with a situation in which a landowner seeks newly acquired access to a state highway for its property which is bounded on two other sides by township roads, one of which had previously provided the primary means of ingress and egress.

Petitioner recognizes, as it must, the Department's authority and responsibility to regulate and prescribe reasonable rules to govern the use of all state highways.*fn2 Balanced against the public's right to a safe and efficiently regulated state highway system are the rights of abutting landowners to secure and maintain reasonable ...


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