PA Commonwealth Court: DOT Satisfied Burden To Establish Taking of Agricultural Lands for Transportation Use

December 2010Newsletters In the Zone

In DOT v. Agricultural Land Condemnation Bd., 5 A.3d 821 (Pa. Commw. 2010), the Commonwealth Court reversed a final order of the Agricultural Lands Condemnation Board (the board) denying the Department of Transportation’s (DOT) request to convert productive agricultural lands to transportation use by condemnation. The court held that the DOT had satisfied its burden of establishing that no reasonable and prudent alternative to the use of agricultural lands existed, and testimony by protestants, standing alone, was insufficient to refute the expert engineering evidence presented by DOT.

In the case, the DOT filed an application with the board seeking approval to use productive agricultural land for the Lebanon County, Schaefferstown Bypass Project (the project). In its application, the DOT identified three project needs: (1) reduce congestion along S.R. 501 within the Village of Schaefferstown, citing deficient levels of service (LOS); (2) improve safety along S.R. 501; and (3) improve regional system continuity. At the hearing before the board, the DOT presented the testimony of the DOT district project manager and several engineers. Owners of the agricultural land (the protestants) testified in opposition but did not present any expert testimony or reports.

In its review, the board was required to consider the Commonwealth’s Agricultural Land Preservation Policy, 4 Pa.Code §§ 7.301-7.308, which calls for the protection and preservation of agricultural land that is and has been in active agricultural use for the preceding three years. The DOT application presented seven alternatives as a means to develop the project. If an alternative’s impact is found to be excessive, the alternative is considered unreasonable. If an alternative is determined not to meet project needs, it is considered not prudent. During the hearing, DOT’s experts dismissed all alternatives except Alternative 1 because the others did not meet the project needs and/or were unreasonable due to excessive environmental impacts. The DOT presented expert testimony and traffic studies that concluded Alternative 1 would satisfy DOT’s stated project needs while presenting the best balance of impacts to the environment compared to the other alternatives.

The protestants testified in opposition to Alternative 1 because it would require the condemnation of several acres of the protestant’s active crop land and pasture farmland. While the protestants advocated for other project alternatives, they did not present any expert testimony or refute the testimony given by DOT’s experts that these alternatives failed to address the project’s needs.

Ultimately, the board denied DOT’s request to condemn productive agricultural land to construct Alternative 1. The board found the DOT failed to offer testimony or other documentation regarding: (1) the 20-year projected LOS as a result of the utilization of agricultural land; (2) the potential for increased traffic to S.R. 419 and 897; and (3) whether the LOS at the western intersection of the project study, which has the lowest LOS, will improve. The board also found, among other things, there was insufficient evidence that Alternative 1 would improve safety along S.R. 501, and the improvement proposed for the areas on S.R. 501 with the highest crash rates did not require utilization of agricultural lands. Based on these findings, the board concluded the DOT failed to present sufficient evidence that Alternative 1 satisfied all project needs. Additionally, the board concluded that based upon the testimony of protestants, other alternatives could be further developed and refined to meet the project needs.

The Commonwealth Court reversed, finding the DOT met its burden of establishing by a preponderance of the evidence that there was no reasonable and prudent alternative to the utilization of agricultural lands other than Alternative 1, and the protestant’s testimony, standing alone, was insufficient to refute the expert engineering evidence presented by the DOT. The court found that the board’s findings that Alternative 1 did not meet certain project needs were improper in that they imposed new project needs not established by the DOT. Moreover, the court found the board had exceeded its statutory authority by ignoring the record and concluding on its own there were alternatives that might be reasonable and prudent.

This case establishes that while the burden falls on the condemnor to establish by a preponderance of the evidence that there is no reasonable and prudent alternative to utilization of productive agricultural land, once that initial burden is satisfied, the burden of production shifts to protestants. Expert testimony is required to satisfy the protestant’s burden of production where the issues before the Agricultural Lands Condemnation Board require scientific or specialized knowledge, as will often be the case in such matters.

For more information, please contact Clair E. Wischusen at 215.918.3559 or [email protected].