Thursday, January 10, 2013

PennDOT's Highway Occupancy Permit an Exercise in Eminent Domain Power?

Ristvey, et. al v. Pennsylvania Department of Transportation, 52 A.3d 425; 2012 Pa. Commw. LEXIS 197 (2012)
 
Frank Kosir, Jr., Esquire
fk@muslaw.com
This matter addressed the issue of whether PennDOT’s issuance of a Highway Occupancy Permit constituted an exercise of its eminent domain power, or of its police power.  Michael Ristvey, Jr., Nancy K. Ristvey, Nedra J. Lewis and Chester B. Scholl, Jr. (“Owners”) are the owners of twenty-three (23) acre parcel of real property (“Property”) situated in Hermitage, Mercer County, Pennsylvania.  The Property is zoned residential, and is situated on the eastern side of State Route 18.  In 2004 Cedarwood Development Corporation (“Cedarwood”) applied to the Pennsylvania Department of Transportation (“PennDOT”) for a Highway Occupancy Permit (“HOP”) for a parcel of real property, zoned commercial, that it owned directly across Route 18 from the Property and planned to develop for a Wal-Mart Store.  As part of its application, Cedarwood sought to reconfigure the five-lane Route 18 to include, inter alia, a new traffic signal and a dedicated, north-bound, left turn stand-by lane.  PennDOT granted the application and construction was completed in 2006. 

Although being aware of Cedarwood’s application since at least early 2005, the Owners did not oppose the application, or raise any inquiries in relation thereto, until 2009, when Michael Ristvey, Jr. requested a copy of the HOP and traffic impact study prepared for Cedarwood.  Thereafter, on July 29, 2010, the Owners filed a Petition for Appointment of a Board of Viewers (“Petition”) in the Mercer County Court of Common Pleas, alleging a de facto taking of the whole of the Property.  In support of their position, the Owners alleged that the issuance of the HOP resulted in the stacking of cars in the new left turn lane, made it impossible to make a safe left turn out of the Property, and rendered the Property valueless.  In response, PennDOT filed Preliminary Objections asserting, inter alia, that its issuance of the HOP constituted an exercise of its police power, not its eminent domain power and that, as such, no compensation was due to the Owners.  The trial court sustained the Preliminary Objections, and dismissed the Petition with prejudice.  In response, the Owners appealed to the Pennsylvania Commonwealth Court asserting that, as the primary purpose of the issuance of the HOP was to provide for adequate traffic controls, the HOP served a public purpose, and was an exercise of PennDOT’s eminent domain power.

On appeal, our Commonwealth Court affirmed.  In issuing its ruling, the court noted that Section 420 of the State Highway Law (36 P.S. § 670-420) vests PennDOT with the authority to control the flow of traffic on state highways.  As such, PennDOT is vested with the power to compel a property owner to install traffic lights, turn lanes or any other traffic calming mechanisms it deems appropriate to control traffic flow in a particular circumstance.  In the matter at hand, there was no evidence that any of the requirements that PennDOT included in the HOP were unreasonable and, although PennDOT’s actions did in fact somewhat restrict the Owners’ abilities to use their property, these actions amounted to nothing more than the enforcement of its regulations.  As such, PennDOT’s actions did not constitute a taking of the Property for a public purpose, and no damages were due to the Owners.

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