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decided: March 21, 1989.


Appeal from the Order of the Court of Common Pleas of Delaware County in the case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation of Right of Way for Legislative Route 1010, Section B1, and Legislative Route 23031, Section 2, Limited Access Highways, in the Township of Marple, No. 87-14646.


John W. Nilon, Jr., with him, Lee A. Stivale, Nilon, Paul & Mardinly, for appellants.

William J. Cressler, Assistant Counsel, with him, John L. Heaton, Chief Counsel, for appellee.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 124 Pa. Commw. Page 315]

Before us for consideration is the appeal of Donald and Mary Ann Gaster (the Gasters) from an order of the Court of Common Pleas of Delaware County which dismissed the Gasters' preliminary objections to a declaration of taking filed by the Commonwealth of Pennsylvania, Department of Transportation (Department). We affirm.

The genesis of this case was the Department's October 13, 1987 filing of a notice of condemnation and declaration of taking pursuant to Section 402 of the Eminent

[ 124 Pa. Commw. Page 316]

Domain Code*fn1 (Code), 26 P.S. § 1-402, which condemned 5.2285 acres of land owned by the Gasters. The stated purpose of the condemnation was "to acquire property for limited access transportation purposes and to acquire property to replace wetlands adversely affected" by the construction of Legislative Route 1010 (Blue Route). As authorization for the condemnation, the Department cited the provisions contained in Section 2003(e) of The Administrative Code of 1929 (Administrative Code), Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 513(e), specifically Section 2003(e)(1), 71 P.S. § 513(e)(1), and Section 2003(e)(2)(ii), 71 P.S. § 513(e)(2)(ii).

Thereafter, on November 12, 1987, the Gasters filed preliminary objections in the nature of a motion to strike and a motion for more specific pleading to the Department's declaration of taking pursuant to Section 406 of the Code, 26 P.S. § 1-406. Therein, the Gasters challenged the Department's authority to condemn land for wetland replacement purposes. Following a January 11, 1988 evidentiary hearing on the Gasters' preliminary objections, the common pleas court held that the Department did possess the statutory authority and dismissed the Gasters' objections. This appeal followed.

The Gasters' appeal presents three issues for our review;*fn2 (1) whether the Department is statutorily empowered to condemn property to replace wetlands destroyed by a highway project, (2) whether Article 1, Section 27 of the Pennsylvania Constitution precludes

[ 124 Pa. Commw. Page 317]

    the Department from condemning land for environmental purposes, and (3) whether the Department is bound by federal environmental procedures with regard to its choice of wetland replacement sites.

Is the Department Statutorily Empowered To Condemn Property To Replace Wetlands Destroyed by Highway Construction?

The Gasters contend that the Department is not authorized to condemn property to replace wetlands -- an environmental purpose -- because the clear expression of the General Assembly is to vest other political subdivisions and agencies with the legal right and authority to conserve, replace by condemnation, and maintain Commonwealth wetlands. They cite in support of that contention the provisions of the Open Space Lands Act, Act of January 19, 1968, P.L. (1967) 992, 32 P.S. §§ 5001 through 5010. Section 4 of that Act, 32 P.S. § 5004, provides that the Commonwealth, through the Department of Forests and Waters*fn3 or the Department of Agriculture, may exercise the powers of condemnation granted by the Act only in concert with the various counties of the Commonwealth.*fn4 The Gasters also cite in support of their position several cases in which this Court has denied attempts by other state agencies and political subdivisions to assert authority over such a matter or gain

[ 124 Pa. Commw. Page 318]

    standing to contest judicial and quasi-judicial actions. See, e.g., Incorporation of the Borough of Valley-Hi, 33 Pa. Commonwealth Ct. 180, 381 A.2d 204 (1977), (scope of county's powers limited to those specified by the county code and by the constitution).

We find these authorities unpersuasive. While the Open Space Lands Act grants the power of condemnation to DER, the Department of Agriculture, and the counties, it does not state that this grant of power is exclusive to these agencies and political subdivisions. The Gasters cite no authority, nor are we aware of any, which grants the power to condemn for wetlands purposes to any particular governmental agency or unit to the exclusion of all others. Further, the cases cited by the Gasters are not relevant to the issue before us. We are faced with neither a standing issue nor a dispute between agencies or political subdivisions, but rather with the unqualified question of whether the Department has the statutory authority to condemn the Gasters' property for wetlands purposes.

The Gasters further cite Scanlon v. Department of Transportation, 502 Pa. 577, 467 A.2d 1108 (1983), wherein our Supreme Court held that the Department does not have the power to modify by agreement its statutory authority. Scanlon concerned the Department's attempt to establish and implement an automobile emissions testing program pursuant to a consent decree entered into in United States district court, when it lacked the statutory authority to do so. The Gasters contend that the Department is attempting to supplement its authority in a like manner pursuant to a settlement entered into in Anthony v. Army Corps of Engineers and Department of Transportation, C.A. No. 87-2203 (E.D. Pa. October 28, 1987). Therein, the settlement identified the Gasters' property and specified time periods for its acquisition.

[ 124 Pa. Commw. Page 319]

However, there is no indication that the acquisition of the Gasters' property resulted from that lawsuit. In fact, testimony at the hearing before the common pleas court revealed that the Gasters' property had been identified as a suitable wetlands replacement site as early in the planning process as 1985 (N.T. 1/11/88 48-50). In the case sub judice, the Department, in its declaration of taking, relied on the statutory authority provided in Section 2003(e) of the Administrative Code and not on the Anthony settlement. As such, we also find this argument to be unpersuasive.

The Department asserts that its authority to condemn property on behalf of the Commonwealth is set forth in Section 2003(e) of the Administrative Code. Subsection (2) of Section 2003(e) identifies three specific situations where the Department may condemn land for other than a transportation purpose.*fn5 71 P.S. § 513(e)(2). This Section states in pertinent part:

(2) In addition to land required for highways and other transportation facilities, the department may acquire:

(ii) land abutting a highway or other transportation facility if the secretary determines that such land has been or is likely to be adversely affected by reason of its proximity to such highway or other transportation facility, or is required for the purpose of mitigating adverse effects on other land adversely affected by its proximity to such highway or other transportation facility. . . .

71 P.S. § 513(e)(2)(ii) (emphasis added).

[ 124 Pa. Commw. Page 320]

We have not had occasion prior to this time to address the Department's authority under subpart (ii) of subsection (2). However, we may turn for guidance to the provisions of the Statutory Construction Act of 1972, 1 Pa. C.S. §§ 1901 through 1991. Section 1903 of that Act provides that words and phrases shall be construed according to their common and approved usage. 1 Pa. C.S. § 1903. Here, Section 2003(e)(2)(ii) of the Administrative Code provides that the Department may acquire land abutting a highway if such land is "required for the purpose of mitigating adverse effects on other land adversely affected by its proximity to such highway." Mitigation is defined as "abatement," "alleviation," and "moderation." Webster's Third New International Dictionary 1447 (1986). We believe that the creation of replacement wetlands will act to abate, alleviate, and moderate the adverse effects of losing similar existing wetlands destroyed due to their proximity to the Blue Route. As such, we hold that the Department is statutorily authorized by Section 2003(e)(2)(ii) of the Administrative Code to condemn property to replace wetlands destroyed by the highway, subject to the provisions of that Section.

The Gasters argue, however, that a strict construction of Section 2003(e)(2)(ii) would preclude the Department from condemning their property and refer us to Section 1928(b)(4) of the Statutory Construction Act which requires that the provisions of a statute conferring the power of eminent domain be strictly construed. 1 Pa. C.S. § 1928(b)(4). See also Golding v. Township of New Britain, 33 Pa. Commonwealth Ct. 635, 382 A.2d 509 (1978) (authority to exercise eminent domain power should be strictly construed). However, strict construction does not require "that a statute be construed as narrowly as possible, or that it be construed so literally and without common sense that its obvious intent is

[ 124 Pa. Commw. Page 321]

    frustrated." Pittsburgh School District Condemnation Case, 430 Pa. 566, 570, 244 A.2d 42, 44 (1968). We believe the Gasters' construction of Section 2003(e)(2)(ii), however skillfully argued, to be overly narrow, and we decline to read it to prevent the Department's condemnation of the Gasters' land to mitigate the effect of the Blue Route on existing wetlands.

The Department also contends that the condemnation of the Gasters' property is proper pursuant to Section 2003(e)(1) of the Administrative Code which authorizes the Department to condemn property for "all transportation purposes." In Appeal of Corcoran, 113 Pa. Commonwealth Ct. 402, 537 A.2d 384 (1988), Judge MacPhail wrote that the phrase "all transportation purposes" means that:

     if the purpose of the condemnation is in furtherance of [the Department's] responsibility to provide a fast, safe and efficient transportation system in the Commonwealth with due regard to public health and safety, then [the Department] has the authority and the duty to proceed with that condemnation if it is incidental to the reconstruction, repair or maintenance of a State designated highway.

Id. at 405, 537 A.2d at 385 (footnote omitted). We hold that because the Department must mitigate wetlands damaged in order to receive federal funds necessary for the construction of the Blue Route, a nexus exists between the Department's condemnation of the Gasters' property and the Blue Route project sufficient to bring that condemnation within the "all transportation purposes" requirement of Section 2003(e)(1).

[ 124 Pa. Commw. Page 322]

    likewise found unpersuasive the Gasters' argument that the power to acquire lands for the creation of wetlands is exclusive to any one agency.*fn8 Were we to so hold, the Department would be forced to request DER to acquire land needed for any environmental mitigation purpose, a result we believe to be impractical and unreasonable and thus contrary to Section 1922(1) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1922(1).

Is the Department Bound by Federal Environmental Procedures, Specifically the Provisions of 23 C.F.R. 777 (1987), With Regard To Its Choice of Wetland Replacement Sites?

Our Supreme Court, in Simco Stores v. Redevelopment Authority, 455 Pa. 438, 317 A.2d 610 (1974), held that the scope of preliminary objections under Section 406 of the Eminent Domain Code, 26 P.S. § 1-406, is limited. Similarly, this Court has held that a challenge to the Department's compliance with state and federal environmental

[ 124 Pa. Commw. Page 324]

    procedures during the planning process of a roadway is not within the scope of Section 406, but is collateral to the condemnation proceedings and justiciable only through proceedings in equity. See Condemnation for Route 58018, 31 Pa. Commonwealth Ct. 275, 280-81, 375 A.2d 1364, 1367-68 (1977). Further, we have stated that:

Considering the first type of allowable preliminary objection, the power or right of the condemnor, the appellants are not actually challenging the power or right of Penn DOT to take their land. This is provided by statute, Act of May 29, 1945, P.L. 1108, as amended, 36 P.S. § 2391.8. More accurately, they are challenging a collateral procedure to be followed as part of highway planning. Likewise, the challenge is not to sufficiency of the security or the declaration of taking itself. Therefore, if appellants' argument is to fit into one of the allowable categories of preliminary objections, it must qualify as an objection to 'any other procedure followed by the condemnor.'

However, in Simco Stores, Inc. v. Philadelphia Redevelopment Authority, 8 Pa. Commonwealth Ct. 374, 379, 302 A.2d 907, 910 (1973), aff'd., 455 Pa. 438, 317 A.2d 610 (1974), this Court stated:

'The term "any other procedure" refers to procedures such as are set forth in Sections 403 and 405, inclusive, and other procedures that may be directly related to the filing of the declaration of taking.'

Condemnation for Route 201, 22 Pa. Commonwealth Ct. 440, 445, 349 A.2d 819, 821 (1975) (regarding notice of an environmental hearing under Section 2002(b) of the Administrative Code). We believe that all the federal regulations

[ 124 Pa. Commw. Page 325]

    relied upon by the Gasters, and in particular 23 C.F.R. 777,*fn9 are similarly collateral to the condemnation itself under state law, and, therefore, hold that they are not the proper subject of preliminary objections.*fn10 Accordingly, the order of the Court of Common Pleas of Delaware County which dismissed the Gasters' preliminary objections to the Department's declaration of taking is affirmed.


Now, March 21, 1989, the order of the Court of Common Pleas of Delaware County in the above-captioned case is affirmed.



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