Hardee's Food Systems, Inc. v. Department of Transportation
Hardee's Food Systems, Inc. v. Department of Transportation
Opinion of the Court
OPINION OF THE COURT
Before us is an appeal by Hardee’s Food Systems, Inc. (“Hardee’s”) from an order of the Commonwealth Court sustaining the denial by appellee, Pennsylvania Department of Transportation (“PennDOT”), of Hardee’s application for Highway Occupancy Permits for the construction of two driveways from its property to a state highway.
Hardee’s proposed to develop a tract of land in Lower Allen Township as a fast food restaurant. The lot in question is bounded on the east and west by township roads and on the north by Old Gettysburg Road, a state highway over which PennDOT has exclusive authority and jurisdiction.
Upon receipt of Hardee’s application, two memoranda prepared by agency employees were circulated within the district agency office having local jurisdiction over the issuance of Highway Occupancy Permits. The memoranda indicated that the permit for Hardee's curb cut requests
A landowner’s right of ingress to and egress from an abutting public highway is an incident of ownership or occupancy of the land, and is a constitutionally protected
First, a municipality cannot, without condemnation, completely shut off an abutting owner’s access to his land, particularly pedestrian access. Second, in highly congested areas the right of vehicular access may be reduced to a minimum, and be so limited as to exclude the right to maintain driveways immediately fronting the property, where it is possible to locate them elsewhere.
332 Pa. at 481, 2 A.2d at 842. Similarly, other jurisdictions have recognized the power of cities or towns to pass ordi
When the Commonwealth attempts to exercise its police power, however, private rights cannot be denied by the arbitrary and unfettered exercise of administrative discretion. As we said in Breinig:
[A]cts of regulation, or limitation of rights, under the police powers must be reasonable. They cannot be sustained if they are capricious, arbitrary, or unduly delimit and unreasonably intermeddle with the rights of an abutting property owner. When the county or other authorities so act it is not within the scope of the police power.
Breinig v. Allegheny County, 332 Pa. at 483, 2 A.2d at 848 (footnote omitted). It is fundamental that a landowner may not be deprived of a constitutionally protected property right by the Commonwealth’s exercise of its police power without a meaningful opportunity to be heard and to devel
Without according Hardee’s any opportunity to be heard, the district engineer’s May 7, 1979 letter totally prohibited access to and from the state highway simply because the 1975 traffic volume map indicated a “high volume of traffic” on Old Gettysburg Road. The record is devoid, however, of any evidence that this “high volume of traffic” on Old Gettysburg Road as of 1975 would cause “undue traffic congestion” at Hardee’s proposed access points in 1979.
Accordingly, we vacate the order of the Commonwealth Court and remand for further PennDOT proceedings consistent with this Opinion, including reasonable notice to Hardee’s of an opportunity to be heard.
. Act of April 9, 1929, P.L. 177, art. XX, § 2002, as amended, 71 P.S. § 512(a)(10) (Supp. 1981).
. The traffic engineer was in error when he stated that Hardee’s had access to two township roads. At the time of his letter, Lower Allen Township had approved access to only one township road, and this was limited to right turn in, right turn out. Only later was Lower Allen Township’s determination to deny Hardee’s access to the other township road reversed by the Court of Common Pleas. The Commonwealth Court, upon appeal by the township, affirmed. Township of Lower Allen v. Hardee’s Food Systems, Inc.,-Pa.Cmwlth.-, 430 A.2d 1027 (1981).
. Jurisdiction is vested in this Court pursuant to the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 724(a).
. See also Eminent Domain Code, 26 P.S. § 1-612 (Supp. 1981), which provides in pertinent part:
All condemnors, including the Commonwealth of Pennsylvania, shall be liable for damages to property abutting the area of an improvement resulting from change of grade of a road or a highway, permanent interference with access thereto, or injury to surface support, whether or not any property is taken. (Emphasis supplied)
Because of our úev,en«maíio« to remind for further proceedings, we need not now addr ess the issue whether the denial of access by PennDOT in this case constituted a compensatory taking.
. The existence of this police power is manifested under section 670-420 of the State Highway Law, which provides in pertinent part:
The secretary is empowered to make reasonable rules and regulations governing the use of all State highways, and by the construction of curbs, divisor strips, painted lines or signs may control the direction of the flow of traffic thereon.
Act of June 1, 1945, P.L. 1242, as amended, Dec. 13, 1979, P.L. 531, No. 117, § 1, 36 P.S. § 670 — 420.
. Because we conclude that PennDOT may prohibit vehicular access to state highways under appropriate circumstances pursuant to the police power of the Commonwealth, we reject Hardee’s argument that the determination by PennDOT officials contravened the Limited Access Highways Act, Act of May 29, 1945, P.L. 1108, as amended, 36 P.S. § 2391.1 et seq, which PennDOT never contended was the source of the authority exercised here.
. The Commonwealth contends that Hardee’s has waived any right to an administrative hearing by failing to raise this issue before the Commonwealth Court. We disagree. In its Petition for Review, Hardee’s in fact preserved this issue by alleging that PennDOT’s order “deprived it of its property and rights without due process of law....”
. Act of April 28, 1978, P.L. 202, No. 53, 2 Pa.C.S.A. § 504 (Supp. 1981).
. There also is nothing in the record indicating where on Old Gettysburg Road the 22,800 vehicles were traveling or at what times of day traffic was the heaviest. Nor was there any indication of how may vehicles were likely to utilize Hardee’s proposed driveways or whether access, rather than having been totally prohibited, could have been limited to times of reduced traffic.
. It is also well settled that a denial of access under the police power must be reasonable and uniform. Wolf v. Commonwealth, 422 Pa. at 40, 220 A.2d at 871. Here, the record is totally lacking any evidence of whether other driveways have been permitted along Old Gettysburg Road, and if so, where they are located with reference to Hardee’s property.
Dissenting Opinion
dissenting.
I would affirm the dismissal of the Petition for Review on the ground that appellant has failed to exhaust available administrative remedies before seeking judicial review. See, e. g., Canonsburg General Hospital v. Department of Health, 492 Pa. 68, 422 A.2d 141 (1980).
Reference
- Full Case Name
- HARDEE’S FOOD SYSTEMS, INC., Appellants, v. DEPARTMENT OF TRANSPORTATION OF PENNSYLVANIA, and Township of Lower Allen, Appellees
- Cited By
- 28 cases
- Status
- Published