Dep't of Transp. v. Agricultural Lands Condemnation Approval Bd.

• Decision Date: 01 September 2010
• Citation: 5 A.3d 821
• Parties: DEPARTMENT OF TRANSPORTATION, Petitioner v. AGRICULTURAL LANDS CONDEMNATION APPROVAL BOARD, Respondent.
• Court: Pennsylvania Commonwealth Court

5 A.3d 821

DEPARTMENT OF TRANSPORTATION, Petitioner

v.AGRICULTURAL LANDS CONDEMNATION APPROVAL BOARD, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs May 14, 2010.

Decided Sept. 1, 2010.

Christopher J. Clements, Asst. Counsel in-Charge and Andrew S. Gordon, Chief Counsel, Harrisburg, for petitioner.

Leon H. Kline and Lois G. Kline, intervenors, pro se.

BEFORE: COHN JUBELIRER, Judge, and McCULLOUGH, Judge, and KELLEY, Senior Judge.

OPINION BY Senior Judge KELLEY.

The Department of Transportation (DOT) petitions for review of a final order of the Agricultural Lands Condemnation Approval Board (Board), which denied DOT's request to convert productive agricultural lands to transportation use by condemnation. We reverse.

By letter dated August 18, 2009, DOT requested a hearing before the Board for consideration of DOT's request to convertby exercise of the power of condemnation, if necessary, productive agricultural lands to transportation use for the Lebanon County, Schaefferstown Bypass Project, State Route (S.R.) 501, Section 006, transportation improvement project (Project). Along with the application, DOT provided the Board with a Farmland Assessment Report. A hearing before the Board was held on September 29, 2009.

At the hearing, DOT presented the testimony of Douglas P. Murphy, DOT district project manager; L. Brian Hoover, project engineer and a board-certified engineer; and Douglas George, project manager and board-certified engineer. In opposition, Lois G. Kline, Leon H. Kline, and Andrew Kline (collectively, the Klines) testified.

Based upon the testimony and evidence presented, the Board made the following relevant findings of fact. The Project would realign approximately 1.6 miles of S.R. 501, a two-lane highway facility, in Lebanon County, to reroute traffic around the Village of Schaefferstown. DOT identified three Project needs:

(1) Reduce congestion along S.R. 501 within the Village of Schaefferstown

• Deficient Levels of Service (LOS) ¹

• Percentage of Through Traffic

• High Truck Percentages

(2) Improve safety along S.R. 501

• Geometric Deficiencies

• High Crash Rates

(3) Improve regional system continuity

Board's 10/19/2009 decision at 20; Reproduced Record (R.R.) at 185a, 248a.

The Project study area is approximately one mile wide and is predominantly productive agricultural land, including prime farmland soils and farmland soils of statewide importance as defined by the Farmland Protection Policy Act of 1981 (Farmland Act).² In its review of agricultural lands proposed for condemnation, the Board is required to consider the Commonwealth's Agricultural Land Preservation Policy, 4 Pa.Code §§ 7.301- 7.308, which intends to protect and preserve prime agricultural land which has been and continues to be in active agricultural use for the preceding three years. The study area includes 20 agricultural operations which utilize 32 parcels of productive agricultural land.

Seven alternatives were investigated as a means to develop and evaluate transportation options for the Project. These alternatives consisted of the No-Build Alternative, the Transportation System Management (TSM) Alternative, and Alternatives 1 through 5. If an alternative's impacts were determined by DOT to be excessive, the alternative was considered unreasonable and was not carried forward for further study. If the alternative was determined to not meet the Project needs, it was considered as not prudent and was not carried forward for further study.

DOT dismissed the No-Build Alternative, the TSM Alternative, and Alternatives 2 through 5 because they did not meet the Project needs and/or were unreasonable due to excessive environmental impacts. DOT's preferred alternative is Alternative 1. Alternative 1 begins at the southern end of the Project study area. The total length of Alternative 1 would be 1.32 miles with 1.2 miles of new construction.Alternative 1 would impact 17.57 acres of productive agricultural land, 14.89 acres of prime and statewide farmland soils, .65 acres of agricultural security areas, 4 farm operations, .02 acres of wetland areas, 2 stream crossings, 1.83 acres within the 100-year floodplain and .96 acres of forestland. Alternative 1 would also require 9 residential displacements, two commercial displacements, one bike path crossing and the taking of land in two National Register listed historic districts-Brendle Farms and Old Mill Road Historic District.

Alternative 1 directly and indirectly impacts the farming operations of the Klines. The Klines operate a full-time dairy and steer operation which contains approximately 257 acres of productive agricultural land, of which 202 acres are owned by the Klines and 55 acres are leased; corn and alfalfa are produced for livestock consumption. As to the Klines' farming operation, Alternative 1 would directly impact 3.8 acres of active crop land and 1 acre of active pasture land and would indirectly impact .7 acres of active pasture land. Approximately 70 individuals with the Schaefferstown community signed a petition opposing the Project as proposed in Alternative 1.

The Board found that DOT offered no testimony or other documentation regarding the 20-year projected deficient LOS as a result of the utilization of agricultural lands. DOT offered no testimony or other documentation regarding the increased traffic to S.R. 419 and 897 that will result as a consequence of the relocation of the eastern S.R. 501 intersection. DOT did not offer any testimony that the LOS at the western intersection of the Project study, which has the lowest LOS, will improve. The testimony and evidence presented by DOT does not indicate how the utilization of productive agricultural lands as proposed by Alternative 1 will improve the overall safety along S.R. 501; the improvement proposed for the areas identified as having the highest crash rates in excess of the state average do not require the utilization of productive agricultural lands. The testimony and evidence presented by DOT does not indicate how Alternative 1 will address the existing geometric deficiency associated with the presence of the unprotected objects such as utility poles, trees and signs that obstruct the clear zone of existing driveways, nor does it address the introduction of additional unprotected objects in the future. The Board found, based upon the testimony offered by the Klines, that the TSM Alternative or Alternative 5 could be further developed and refined to more reasonably and prudently address the Project needs. Based upon these findings, the Board concluded that DOT failed to present sufficient evidence that proposed Alternative 1 satisfies all Project needs.

By order dated October 19, 2009, the Board denied DOT's request to use condemnation to acquire all productive agricultural land located in Heidelberg Township, Lebanon County, needed to construct Alternative 1 as described in the Farmland Assessment Report. DOT filed an application for rehearing, which was denied. DOT then filed a petition for review with this Court.³ Lois G. and Leon H. Klinehave intervened.⁴

DOT presents the following issues for our review:

1. Whether DOT met its burden of proof by a preponderance of evidence that there is no reasonable and prudent alternative to utilization of the lands in question other than Alternative 1 and is thus entitled to approval of its application.

2. Whether the Board failed to shift the burden of production to the Project opponent in this administrative proceeding involving technical matters of traffic study, design engineering and environmental impacts analysis.

3. Whether the Board's finding that Alternative 1 does not meet the needs DOT established for the Project is supported by substantial evidence.

4. Whether the Board exceeded its statutory duty by ignoring the record and denying approval to condemn because there are alternatives that, upon further comprehensive study and refinement, may be reasonable and prudent.

5. Whether the Board abused its discretion and violated DOT's due process rights in failing to grant DOT a rehearing to address the Board's questions on Alternative 5, which were raised for the first time in its adjudication, and to present traffic data for areas outside of DOT's project needs.

First, DOT contends that the Board capriciously disregarded competent evidence and erred in denying approval of DOT's application where DOT met its burden of proof by a preponderance of evidence that there is no reasonable and prudent alternative to utilization of the lands in question other than Alternative 1. We agree.

The Board was established as an independent administrative board by Section 306 of the Administrative Code of 1929 ⁵ (Code). The Board has jurisdiction over the condemnation of agricultural land for highway purposes ⁶ and disposal of solid or liquid waste material. Section 306(d) of the Code, 71 P.S. § 106(d); 4 Pa.Code § 7.304. Before "any agricultural lands, as classified by the Agricultural Soil Conservation Service of the United States Department of Agriculture, which lands are being used for productive agricultural purposes," can be condemned, the Board must "determine that there is no reasonable and prudent alternative to the utilization of such lands for the project." Section 306(b) of the Code, 71 P.S. § 106(b) (emphasisadded). The purpose is to preserve and protect agricultural land and limit the power of condemnation. See 4 Pa.Code §§ 7.301- 7.304.

The burden of showing that there is no reasonable and prudent alternative is on the applicant requesting the condemnation, in this case DOT. See Northwestern Lehigh; Maryland and Pennsylvania Railroad Preservation Authority v. Agricultural Lands Condemnation Approval Board, 704 A.2d 1149 (Pa.Cmwlth.1998).⁷ The degree of proof required to establish a case before an administrative tribunal is the same degree of proof used in most civil proceedings, i.e., a preponderance of the evidence. See Samuel J. Lansberry, Inc. v....