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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (03/21/89)

decided: March 21, 1989.

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. DONALD GASTER AND MARY ANN GASTER, APPELLANTS


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.

COUNSEL

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 ...


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