Property owner loses latest eminent domain challenge

Frankstown Twp. property owner contends PennDOT had no right to take land

A Frankstown Township property owner has lost his latest challenge to the taking of two pieces of his land for PennDOT’s Canoe Creek intersection project, but his attorney said the fight isn’t over.

Comments by Hollidaysburg attorney Phillip O. Robertson came after a state appeals court this week upheld a February 2017 opinion by a Blair County judge dismissing objections to PennDOT’s taking of wooded land owned by Stewart M. Merritts Jr.

Robertson said he may ask the Commonwealth Court to reconsider its decision or he may request the Pennsylvania Supreme Court to review the opinion issued by a three-judge panel.

Or, Robertson said, he may eventually take the issue to the U.S. District Court in Johnstown.

The case was unusual because Merritts challenged PennDOT’s use of eminent domain to take more than 1.5 acres of his land for drainage improvements along Route 22 at Flowing Spring Road, contending that eminent domain could not be used to condemn his land because ownership of the property dates back to a 1755 land warrant from William Penn.

Blair County President Judge Elizabeth A. Doyle held an extensive hearing into Merritts’ objections last year and concluded that Pennsylvania’s power of eminent domain is derived, not from how the ownership of property was established, but “from its power as a sovereign.”

To accept the argument put forth by Robertson would allow any landowner who can trace his deed back to its original colonial grant to circumvent more than 150 years of eminent domain law and would “usurp the sovereignty of the commonwealth,” Doyle reasoned.

Commonwealth Court Judge Renee Cohn Jubelirer, writing the opinion on behalf of the three-judge panel that also included Senior Judge James G. Colins and Christine Fizzano Cannon, stated Doyle’s opinion is “amply supported” by prior appeals courts’ decisions.

In 1866, the Pennsylvania Supreme Court concluded the right of Pennsylvania to take property, upon paying the owner compensation, exists in the state’s sovereign right of eminent domain and that the power of eminent domain arises out of the “natural principle which teaches that private convenience must yield to the public wants,” Jubelirer wrote.

In 1913, the Supreme Court stated “every private owner holds his property subject to the right of the sovereign to take the same, or such part of it as may be required, to serve the public use,” according to the Commonwealth Court opinion.

The argument by Merritts that contends the state does not have power to take land transferred by warrant was addressed in an 1890 U.S. Supreme Court case titled Cherokee Nation in which Cherokee lands were taken to construct a railroad line, the Jubelirer opinion stated.

And, she ruled, eminent domain allows the taking of property for transportation improvements.

The opinion pointed out the Canoe Creek project is designed to improve the safety of an interchange from Route 22 leading to Canoe Creek State Park, and it upheld PennDOT’s right to take the land to install new drainage pipes along the highway.

Robertson said he may ask for an immediate stay to halt the clearing of the land for the drainage improvements, which began last November.

PennDOT spokeswoman Tara M. Callahan-Henry said the Westmoreland County company that is doing the project, Plum Contracting Inc., has been on “winter shutdown” but intends to resume its activities by the end of March.

The overall intersection project is to cost $9.6 million and includes realignment of Route 22 to form a four-way intersection at Route 22 and Turkey Valley Road, replacement of bridges, reconstruction of several culverts, the realignment of Beaverdam Road and the vacation of Flowing Spring Road as well as the extension of the Lower Trail under Route 22, linking it with Canoe Creek State Park.

Robertson said the project will, in essence, cut off Merritts from the lower part of his land, and part of his objections included a plan to transfer the vacated Flowing Spring Road to Rails to Trails of Central Pennsylvania, the agency responsible for the continuing development of the Lower Trail.

The plans call for PennDOT to construct a driveway that will allow Merritts to access Route 22 from the portion of his land being condemned for the project, Robertson clarified.

In her opinion, Doyle did not address a plan to transfer the vacated Flowing Spring Road to Rails to Trails for the Lower (named after the late attorney T. Dean Lower) Trail extension, noting that it was not part of PennDOT’s condemnation proceedings.

But the Commonwealth Court explained that the Frankstown Township supervisors in vacating Flowing Spring Road will have to follow a transparent procedure before transferring the land to Rails to Trails:

– Written notice must be provided to the property owner (Merritts).

– An ordinance will have to be prepared.

– The property owner can file exceptions to the proposal.

– The eventual vacation of the road must be approved by the Blair County Court of Common Pleas.

Karl King, vice president of Rails to Trails, said that his organization supports the extension of the Lower Trail — used extensively by bike riders and hikers — into Canoe Creek State Park, but he said his organization has nothing to do with PennDOT’s condemnation procedures or vacation of Flowing Spring Road for the project.

The organization’s effort to extend the Lower Trail is “piggy-backing” on the PennDOT project, he said.

While the Merritts’ lawsuit repeatedly refers to Rails to Trails as a “private entity,” King said the organization is not benefiting financially by the extension of the trail.

“Our sole goal is to develop and operate recreational trails free of charge to the public,” he said.

King explained his organization applies for grants to help in the development of the trails but receives no operational funding as the result of its efforts.

Robertson also contended the PennDOT project violates the Pennsylvania Storm Water Act, but, as was the case with the vacation of Flowing Spring Road, Doyle considered that contention outside the scope of the present lawsuit.