IN THE SUPREME COURT OF THE COMMONWEALTH OF PENNSYLVANIA

_________________________________________________________________

BRIEF OF THE APPELLEES
__________________________________________________________________

Appeal From the Order of the Commonwealth Court dated August 30, 1999,
Denying, in part, PennDOT's Preliminary Objections to a Petition for Review,
and Granting the Whites' Motion for Summary Relief
__________________________________________________________________

Thomas Alan Linzey, Esq.
Supreme Court I.D. #76069
Community Environmental Legal Defense Fund (CELDF)
2859 Scotland Road
Shippensburg, Pennsylvania 17257
(717) 709-0457
(717) 709-0263 (fax)

Counsel for the Appellees
TABLE OF CONTENTS

Table of Citations. . . . . . . . . . . . . . . . . . . . . . . . . . . . i-ii

Counter-Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . . . . 1

Counter-Statement of Questions Involved. . . . . . . . . . . . . . . . . . . .2

Counter-Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . .3

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . 9

Argument

I. THIS CASE WAS INITIATED AS A REVIEW OF A FINAL DETERMINATION ISSUED BY PENNDOT WHICH WAS SUPPORTED BY THE AGENCY'S ADMINISTRATIVE RECORD AND THEREFORE, NO APPEAL AS OF RIGHT EXISTS FROM THE RULING OF THE COMMONWEALTH COURT. . . . . . . . . . . . . . . . . . . . . 10

II. THE COMMONWEALTH COURT CORRECTLY DECLARED THAT THE AGENCY'S INTERPRETATION OF THE AGRICULTURAL AREA SECURITY LAW - WHICH EXEMPTED THE EXIT 7 PROJECT FROM ALCAB REVIEW - WAS ERRONEOUS. . . . . . . . . . . . . . . . . 14

A. The Exit 7 Project is Not Exempted from ALCAB Review by the Plain Language of the Law Nor is it Similar to Those Activities Exempted by the Law. . . . . . . . . . . . . . . . . . . . . 16

B. Previous Rulings of the Agricultural Lands Condemnation Approval Board (ALCAB) and the Commonwealth's Public Policy on Farmland Preservation Support the Commonwealth Court's Ruling. . . . . . . . 21

C. PennDOT's Own Treatment of the Exit 7 Project and Projects Similar to the Exit 7 Project Supports the Commonwealth Court's Ruling That the Exit is Subject to ALCAB Review. . . . . . . . . . . 28

III. THE COMMONWEALTH COURT UNANIMOUSLY AND CORRECTLY HELD THAT IT HAD JURISDICTION OVER THE WHITES' CHALLENGE TO THE AGENCY'S DETERMINATION THAT ALCAB REVIEW WAS LEGALLY UNNECESSARY. . . . . . . . . . . . . . . . . . . . . . . . . 30

A. ALCAB Review is an Integral Part of PennDOT's Highway Planning Process as Evidenced by PennDOT's Own Record Produced in Support of Its' Determination That ALCAB Review was Legally Unnecessary. . . . 34

B. The Nature of the Whites' Challenge, as a Review of the Agency's Final Determination That ALCAB Review Was Legally Unnecessary, Supports the Assertion of Jurisdiction by the Commonwealth Court. . . . 41

C. The Desirability of Achieving Early Resolution of Challenges to Agency Determinations that ALCAB Review is Not Legally
Required Also Supports the Commonwealth Court's Jurisdiction in This Case. . . . . . . . . . . . . . . . . . . . . . . . 44

IV. Conclusion

Attachment: Map of Project Area: "Alternative D-Modified and Agricultural Security Areas"

Certificate of Service of Process

TABLE OF CITATIONS

Caselaw

Breininger v. Sheet Metal Workers International Association Local Union Number 6, 493 U.S. 67 (1989). . . . . . . . . . . . . . . . . . . . . . . . . 17

Commonwealth ex rel. Varronne v. Cunningham, 73 A.2d 705 (1950). . . . . . . . . 16

DeLellis v. Borough of Verona, 660 A.2d 25 (1995). . . . . . . . . . . . . . . . 17

In Re: Application of Pennsylvania Department of Transportation; L.R. 1125, Washington County (ALCAB 1988). . . . . . . . . . . . . . . . . . . . . . . 24

In re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right of Way for Legislative Route 1010, Section B1, and Legislative Route 23031, Section 2, Limited Access Highways, in the Township of Marple (Appeal of Gaster), 124 Pa. Commw. 314, 556 A.2d 473 (1989). . . . . . . 32, 40

In Re: I-81 Connector (ALCAB 1990). . . . . . . . . . . . . . . . . . . . 23

In Re Land Owned by Wexford Plaza Assoc., 674 A.2d 1204 (Pa. Cmwlth.1996). . . . 42

In Re Legislative Route 58018, 375 A.2d 459 (Pa. Cmwlth. 1990). . . . . . . . . passim

In Re: Mifflin County, Pennsylvania, S.R. 0022, Section C02, U.S. 22 Improvements at Lewistown (ALCAB 1995). . . . . . . . . . . . . . . . . . . . . 23

In Re: S.R. 0078 Section 01R, I-78 Eastbound Safety Rest Area, Lehigh County (ALCAB 1994). . . . . . . . . . . . . . . . . . . . . . . . . . 23

In Re: Welsh Road Corridor Improvement Project (ALCAB 1993). . . . . . . . . . 21

In the Matter of: Department of Transportation with Respect to the Harold Williams Farm (ALCAB 1985). . . . . . . . . . . . . . . . . . . . . . . . 24

In the Matter of New Garden Township, 579 A.2d 459 (Pa. Cmwlth. 1990). . . . . . . 42

In the Matter of the Condemnation of Certain Parcels of Land Located in the First Ward of the City of Lancaster, Pennsylvania (Appeal of Faranda), 420 Pa. 295, 216 A.2d 769 (1966). . . . . . . . . . . . . . . . . . . . . . passim

McClellan v. Health Maintenance Organization of Pennsylvania, 546 Pa. 463, 686 A.2d 801 (1996). . . . . . . . . . . . . . . . . . . . . . . .18-19

Northwestern Lehigh School District v. Agricultural Lands Condemnation Approval Board, 126 Pa. Commw. 325, 559 A.2d 978 (1989). . . . . . . . . . . . . 43

Pennsylvania Financial Responsibility Assigned Claims Plan v. English, 664 A.2d 84 (1995). 16

Pennsylvania Human Relations Comm. v. Alto-Reste Park Cemetery, 453 Pa. 124, 306 A.2d 881 (1973). . . . . . . . . . . . . . . . . . . . . . . 19-20

-i-

Redding v. Atlantic City Electric Company, 269 A.2d 680 (1970). . . . . . . . . . . 33

Simco Stores, Inc. v. Philadelphia Redevelopment Authority, 8 Pa. Commw. 374, 302 A.2d 907 (1973), aff'd., 455 Pa. 438, 317 A.2d 610 (1974). . . . . . . 33, 38 Steele v. Statesman Insurance Company, 607 A.2d 742 (1992). . . . . . . . . . . . 17

Valley Forge Golf Club v. Upper Merion Township, 221 A.2d 292 (1966). . . . . . . .33

White v. Department of Transportation, 738 A.2d 27 (Pa. Cmwlth 1999). . . . . . passim

Statutes and Rules

3 P.S. ¤902. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

3 P.S. ¤913. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Pa.R.A.P. 1501(3). . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Miscellaneous

Agricultural Resources Evaluation Handbook (PennDOT). . . . . . . . . . . . . 34

Executive Order 1997-6, 4 P.S. ¤7.303(b)(2). . . . . . . . . . . . . . . . . . 26

Pennsylvania Farmer Magazine, "Capitol Capsules" (December, 1979). . . . . . . . . 17

Resources Manual: Sustainable Communities Program in Pennsylvania Counties (1998). . 27

23 Pa Bull. 4487 (September 23, 1993). . . . . . . . . . . . . . . . . . . . 26

-ii-

COUNTER-STATEMENT OF JURISDICTION

As a judicial review of a final determination made by a governmental unit which is supported by the agency's administrative record, the Commonwealth Court's ruling is not appealable as of right under the provisions of 42 Pa.C.S. ¤723 (a). That statutory provision provides for an appeal as of right in any matter which was originally commenced in the Commonwealth Court "except an order entered in a matter which constitutes an appeal to the Commonwealth Court from another court, a district justice, or another government unit." (emphasis added).

-1-

COUNTER-STATEMENT OF THE QUESTIONS INVOLVED

A. WHETHER THE COMMONWEALTH COURT CORRECTLY ISSUED A DECLARATORY JUDGMENT WHICH DECLARED THAT PENNDOT WAS REQUIRED TO OBTAIN THE APPROVAL OF THE AGRICULTURAL LANDS CONDEMNATION APPROVAL BOARD (ALCAB) PRIOR TO CONDEMNING ACTIVE FARMLAND WHICH IS LOCATED WITHIN TWO AGRICULTURAL SECURITY AREAS AND IS NECESSARY FOR THE CONSTRUCTION OF A HIGHWAY PROJECT WHICH REQUIRES THE RELOCATION OF SEVERAL ROADS, THE CONSTRUCTION OF A NEW HIGHWAY INTERCHANGE, AND THE CONSTRUCTION OF SEVERAL NEW CONNECTOR ROADS?

(Answered in the affirmative by the Commonwealth Court.)
(Proposed Answer: Yes.)

B. WHETHER THIS COURT HAS JURISDICTION, AS AN APPEAL OF RIGHT, FROM THE COMMONWEALTH COURT'S REVIEW OF THE FINAL DETERMINATION OF A GOVERNMENTAL AGENCY WHICH WAS SUPPORTED BY THE AGENCY'S ADMINISTRATIVE RECORD?

(Not Answered by the Commonwealth Court.)
(Proposed Answer: No.)

C. WHETHER THE COMMONWEALTH COURT CORRECTLY CONCLUDED THAT THE WHITES' CHALLENGE TO PENNDOT'S DETERMINATION - THAT ALCAB REVIEW WAS LEGALLY UNNECESSARY - WAS TO A COLLATERAL PROCEDURE TO BE FOLLOWED AS PART OF HIGHWAY PLANNING?

(Answered in the affirmative by the Commonwealth Court.)
(Proposed Answer: Yes.)

-2-

COUNTER-STATEMENT OF THE CASE

A. A Statement of the Form of Action and a Brief Procedural History of the Case

This appeal was brought by the Pennsylvania Department of Transportation from an order of the Commonwealth Court entered on August 30, 1999. Record at 192a. In that ruling, the Commonwealth Court held in favor of a farming couple who asserted that PennDOT's final determination - that approval by the Agricultural Lands Condemnation Approval Board (ALCAB) was not required prior to the condemnation of the farming couple's farmland - was an erroneous interpretation of the law. Record at 240a-243a. The Commonwealth Court had previously granted the farming couple's request for a Temporary Restraining Order and a Preliminary Injunction against the agency. Record at 51a and 144a. On September 10, 1999, PennDOT filed an Application for Reconsideration of the Commonwealth Court's final ruling. Record at 193a. On September 15th, and prior to action on the Application for Reconsideration filed by the agency, PennDOT appealed the Commonwealth Court's ruling. Record at 227a. The Commonwealth Court denied PennDOT's Application for Reconsideration on September 30th. Record at 254a. The Whites filed a Brief in Opposition to PennDOT's jurisdictional statement, contending that this Court lacked jurisdiction under 42 Pa.C.S. ¤723 (a) as an appeal of right because this matter constituted an appeal to the Commonwealth Court from a final determination made by a governmental unit which was supported by a record. See Whites' Brief in Opposition to Jurisdictional Statement at 2-5. This Court noted probable jurisdiction to hear PennDOT's appeal on January 7, 2000.

-3-

B. A Brief Statement of Any Prior Determination of Any Court or Other Governmental Unit

Beginning in 1994 and extending to the April, 2000 PennDOT notification to the Whites of imminent entry onto their farmland for the purposes of highway planning after the Record of Decision (ROD) was approved for the Exit project, PennDOT issued a series of public determinations that the approval of the Agricultural Lands Condemnation Approval Board (ALCAB) was legally unnecessary prior to the condemnation of the Whites' farmland. Suppl. Record at 6s-7s and 9s. This series of determinations reversed earlier determinations made by the agency that ALCAB approval would be required for the condemnation of the farmland. Suppl. Record at 5s. Upon receiving notice of imminent entry by the agency, the Whites filed an action in the Commonwealth Court which asked the Court to review PennDOT's determination that ALCAB review was not legally required. Record at 8a.

The Commonwealth Court granted every request for preliminary and final relief submitted by the farming couple. On May 10, 1999, the Commonwealth Court granted the Whites' request for a Temporary Restraining Order which prevented the agency from entering the Whites' farmland. Record at 51a. On May 24, 1999, after holding a hearing at which testimony was received from several witnesses for the Plaintiffs, (Record at 70a), the Commonwealth Court granted the Whites' request for a Preliminary Injunction, which prevented the agency from entering the Whites' farmland during the pendency of the litigation. Record at 144a. On August 30, 2000, the Commonwealth Court entered final relief against the agency in the form of a declaratory judgment, which declared that PennDOT was legally required to obtain the approval of the Agricultural Lands Condemnation Approval Board (ALCAB) prior to the condemnation of the Whites' active farmland. Record at 192a. Finally, on September 30, 1999, the Commonwealth Court rejected PennDOT's Application for

-4-

Reconsideration. Record at 254a.

C. The Names of the Judges Whose Determinations Are to Be Reviewed

The Opinion of the Commonwealth Court was written by President Judge James Gardner Colins and the Honorable Bernard L. McGinley. A concurring and dissenting opinion was filed by the Honorable James R. Kelley.

D. A Closely Condensed Chronological Statement in Narrative Form

The project which is the subject of this case, a PennDOT proposal to construct an Exit interchange off of Interstate 81 near Chambersburg - known as "Exit 7" - was conceived and partially financed in January of 1987, when Congress appropriated $5.2 million for the Demonstration project. In June of 1989, PennDOT proposed five possible exit sites for the project. In May of 1994, the Department announced that it had chosen the location where Walker Road crosses Interstate 81 as the site for Exit 7. In December of 1994, in anticipation of the construction of the Exit, the Chambersburg Borough Council accelerated the loss of farmland in the area by re-zoning the last remaining farmland in the Borough (193 acres) that surrounded the proposed location of the Exit.

In August of 1995, the Keeper of the National Register of Historic Places ruled that areas east and west of the proposed interchange qualified as rural historic districts and were thus protected from highway construction. Record at 14a. In 1998 and 1999, PennDOT attempted to re-design the interchange to avoid those designated areas. In order to do so, the agency announced plans to completely demolish the existing Walker Road bridge and reconstruct a new bridge thirteen hundred and fifty

-5-

(1350) feet south of the existing bridge and build new roads to connect the new bridge to the existing road network. Record at 45a.

In 1995, the Department's determination that ALCAB review was not required for the condemnation of the Whites' farmland - a reversal of earlier positions taken in planning and environmental documents - was informally challenged by the Pennsylvania Farm Bureau and the Greene Township Board of Supervisors Record at 28a to 35a. In letters exchanged with the Farm Bureau, the agency continued to contend that the project related to an "existing highway" and therefore, did not require ALCAB review. The Farm Bureau expressed concern that the exception was being used in this case to take about twenty-six (26) acres of farmland out of active production, including substantial acreage contained within two agricultural security areas. The Farm Bureau pointed out that the position of the Department was not consistent with prior positions taken by the Department and was not consistent with the language and original intent of the Agricultural Area Security Law. Record at 35a to 36a. In addition to the Pennsylvania Farm Bureau's concerns, the Greene Township Board of Supervisors expressed similar concerns to the Pennsylvania Department of Agriculture in an April 25, 1995 communication. Record at 28a. The Franklin County Farmers' Association also expressed concern via a resolution adopted in 1989. Record at 27a.
As presented at the hearing on the Whites' Motion for Preliminary Injunction, Appellees Lamar and Lois White have actively farmed the land to be impacted by this project for the past twenty years. Record at 77a. The farmland has been used for row-crop production of soybean and corn. Id. Construction of the project will result in the elimination of the sole right of way currently used by the Whites to access their entire parcel of farmland within the Agricultural Security Area, which will result in the elimination of the entire twenty-six acres from active agricultural production. Record at

-6-

16a. Lamar White also testified that the Whites had refused entry to PennDOT personnel on several previous occasions, and had never allowed PennDOT to enter their farmland. Record at 79a.

PennDOT's determination that ALCAB review was legally unnecessary culminated in the Whites' receipt of notice that the Department's project schedule included plans for condemnation of their farm in the summer of 1999. Record at 45a. Shortly thereafter, the Whites received notice that PennDOT was planning to make an imminent entry upon the Whites' farmland. Record at 24a. Days after receiving that notice, the Whites asked the Commonwealth Court to review PennDOT's determination that ALCAB review was not legally required prior to the condemnation of the farmland. Specifically, the Whites' Complaint explained that the agency had "publicly and privately declared that it has no intention of submitting its plans for condemnation" to the ALCAB and that the Department had "stated its official position that the farmland owned by the Whites is not protected from condemnation by the Agricultural Area Security Law and that the Department will not seek the approval of the Agricultural Lands Condemnation Approval Board (ALCAB) prior to acquisition or condemnation." The Whites asked for a declaratory judgment from the Commonwealth Court that the agency's failure to submit the project to the ALCAB violated the provisions of the Agricultural Area Security law .

On the day of the filing of the Complaint, the Commonwealth Court granted the Whites' request for a Temporary Restraining Order. Record at 51a. On May 12, 1999, the agency filed preliminary objections to the Complaint. Record at 55a. On May 13, 1999, the Court held a hearing on the White's request for a preliminary injunction, (Record at 70a), and on May 24, 1999, the Court granted the Whites' request for a

-7-

preliminary injunction. Record at 144a. On June 2, 1999, the Whites filed a Motion for Summary Relief, asking the Commonwealth Court to declare that PennDOT's determination - that ALCAB review was legally unnecessary - was a clear error of law. Record at 146a.

On August 30, 1999, the Commonwealth Court granted the Whites' Motion for Summary Relief, declaring that the Exit 7 Project was clearly not within the scope of the statutory exceptions to ALCAB's jurisdiction and that the review of PennDOT's determination had been properly brought before the Court for review. Record at 192a.
PennDOT then filed an Application for Reconsideration by the Commonwealth Court. Record at 193a. On September 15, 1999 - and before the Commonwealth Court had an opportunity to rule on the Application - the agency filed the instant appeal with this Court. Record at 227a. On September 30, 1999, the Commonwealth Court denied PennDOT's Application for Reconsideration. Record at 254a.

In response to the Notice of Appeal filed by the agency, the Appellees filed a Brief in Opposition to the Jurisdictional Statement. In that Brief, the Appellees asserted that this Court lacked the jurisdiction to hear an appeal as of right from the ruling of the Commonwealth Court because that Court's ruling was a review of a determination made by a governmental unit which was supported by an administrative record. This Court noted probable jurisdiction to hear PennDOT's appeal on January 7, 2000.

-8-

SUMMARY OF THE ARGUMENT

The Commonwealth Court properly rendered the declaratory judgment that the Pennsylvania Department of Transportation committed an error of law in making its determination that approval from the Agricultural Lands Condemnation Approval Board (ALCAB) was legally unnecessary prior to the construction of the Exit 7 Project. The Court issued four separate rulings to that effect in response to the Whites' requests for preliminary relief and summary relief, and to the Whites' opposition to the agency's request for reconsideration from the Commonwealth Court.

Due to the nature of the case, as an appeal from an appeal of a final determination made by a governmental agency supported by an administrative record, there exists no appeal as of right from the Commonwealth Court.

Even if the appeal is heard on the merits, it is clear that the Commonwealth Court's ruling must be affirmed because the ruling is in full and complete accord with the plain language of the Agricultural Area Security Law, prior rulings of the ALCAB itself, the treatment of the Exit 7 Interchange Project by the Department, and the submission of similar past projects by the Department to the ALCAB for its review. The ruling is also fully supported by the Commonwealth's declared public policy on farmland preservation.

The Commonwealth Court's assertion of jurisdiction over the dispute presented in this case was consistent with the jurisprudence of this Court and the Commonwealth Court. PennDOT's complete integration of ALCAB review into the highway planning process - as evidenced by the agency's own record - supports the Commonwealth Court's exercise of jurisdiction. This dispute was ripe for review by that Court because all planning documents had been completed, the Record of Decision (ROD) had been approved, the agency planned to make an imminent entry onto the Whites' farmland, and no declaration of taking has been filed by the agency.

-9-

ARGUMENT

I. THIS CASE WAS INITIATED AS A REVIEW OF A FINAL DETERMINATION ISSUED BY PENNDOT WHICH WAS SUPPORTED BY THE AGENCY'S ADMINISTRATIVE RECORD AND THEREFORE, NO APPEAL AS OF RIGHT EXISTS FROM THE RULING OF THE COMMONWEALTH COURT

This case involves the judicial review of a final determination made by the Pennsylvania Department of Transportation [hereinafter "PennDOT"] that the agency was not legally required to seek the review of the Agricultural Lands Condemnation Approval Board (ALCAB) prior to the condemnation of the Whites' farmland. The Whites sought a review of PennDOT's determination by filing an action in the Commonwealth Court. Record at 8a. In the Docket Entries, the action was entered as a "Petition For Review/Notice of Appeal". Record at 1a.

The Commonwealth Court's jurisdiction was governed by Chapter 15 of the Rules of Appellate Procedure, which is entitled "Judicial Review of Governmental Determinations." This Chapter explicitly governs
[o]bjections to a determination by a government unit heretofore cognizable in an appellate court by an action in the nature of equity, replevin, mandamus or quo warranto or for a declaratory judgment, or upon writs of certiorari or
prohibition.

See Pa.R.A.P. 1501(3); See also Note to Rule 1501, that "[t]his chapter applies to review of any 'determination' of a 'government unit' and that a 'determination' means 'action or inaction by a government unit.'"

Upon the initiation of the Whites' action, the Commonwealth Court held that the "complaint shall be regarded and acted upon as a petition for review. . . " and declared that the action was filed to the original jurisdiction of that Court. Record at 2a. As noted by the Rules of Appellate Procedure, however, "governmental determinations are so varied in character" that "frequently, it is only at the conclusion of the judicial review

-10-

process. . . that one can determine whether the proceeding" was one of appellate review or required a de novo determination. See Note to Pa.R.A.P. 1502.

At the onset of this litigation, PennDOT adamantly refused to admit that a "determination" of any sort had been issued by the Department that could be "reviewed"; and thus, the agency urged the Commonwealth Court to treat the action as an "original jurisdiction" action rather than as an action of an appellate nature. Later in the proceedings, however, PennDOT admitted that a final determination had been made and that an administrative record existed to support the agency's determination. Using that record, the agency argued that the Commonwealth Court's final disposition of the matter ignored the expert testimony in the areas of engineering and environmental analysis that can be produced in support of the Department's decision to apply the existing highway exemption in this case.

See Application for Reconsideration at 8 (emphasis added) Record at 205a.

More importantly, PennDOT argued in opposition to the Plaintiff's Motion for Summary Relief that the agency's interpretation of the applicable provisions of law supports the Department's decision at issue in this case and the record contains substantial evidence and testimony regarding the investigation of the law and the facts conducted by the Department in exercising its administrative discretion.

See Brief in Opposition to Summary Relief at 9 (in response to the Whites' argument that PennDOT's actions were "arbitrary and capricious.")

When the Whites requested the production of this record earlier in the litigation, PennDOT adamantly argued that no "record" existed. See Motion to Quash

-11-

Petitioners' Motion to Compel Production and Certification of Record at 2 (declaring that "[t]here has been no determination made by the Department in this matter" and "no 'record' is in existence that is capable of being 'filed'"). Relying upon PennDOT's assertions, the Commonwealth Court denied the Whites' motions and explained that "it appear[s] that this is an original jurisdiction matter." Order Denying Petitioners' Motion to Compel Production and Certification of Record at 1 (issued June 28, 1999).

In support of the agency's later argument that a record did exist - which PennDOT complained they did not have an opportunity to produce to the Court - the agency produced sections of its' Agricultural Resources Handbook which detailed the Agricultural Evaluation Process which was allegedly followed during the planning for the Exit 7 project. Record at 163a. In addition, the agency produced PennDOT's Office of Chief Counsel's Legal Opinions on the application of the Agricultural Area Security law to the contours of the older, 1995 design of the Exit 7 Project. Clearly, through these arguments, and through the prior planning documents of the Department relevant to the Exit 7 Project , PennDOT admitted that the Commonwealth Court was exercising appellate-type review over the "determination" by PennDOT that the agency was exempt from the Agricultural Area Security Law, and that an administrative record existed to support that erroneous interpretation.

Rule 1101 of the Pennsylvania Rules of Appellate Procedure declares that an appeal as of right from the Commonwealth Court exists only for

-12-

[a]ny matter which was originally commenced in the Commonwealth Court and which does not constitute an appeal to the Commonwealth Court from another court, a district justice or another government unit. Pa.R.A.P. 1101(a)(1) (emphasis added).

Clearly, because the agency issued a detailed, final determination concerning the inapplicability of ALCAB review, which was supported by the agency's own planning documents, PennDOT is now seeking two bites at the same apple by bringing an appeal to this Court. The agency is appealing to this Court to overturn the Commonwealth Court's ruling on review that PennDOT's determination was legally erroneous and incompatible with the plain language of the law. It is thus an appeal of an appeal, and not properly brought before this Court as an appeal of right.

Allowance of the agency's appeal would ignore the myriad opportunities given to PennDOT, through informal and formal challenges to their policy, to reverse their administrative determination. It also overlooks the agency's vigorous assertion of its' position in the Commonwealth Court proceedings, where PennDOT had a full and fair opportunity to defend their determination from reversal by that Court.

-13-

II.. THE COMMONWEALTH COURT CORRECTLY DECLARED THAT THE AGENCY'S INTERPRETATION OF THE AGRICULTURAL AREA SECURITY LAW - WHICH EXEMPTED THE EXIT 7 PROJECT FROM ALCAB REVIEW - WAS ERRONEOUS

The Agricultural Area Security Law, codified at 3 P.S. ¤913, clearly states that

[n]o agency of the Commonwealth having or exercising powers of eminent domain shall condemn for any purpose any land within any agricultural security security area which land is being used for productive agricultural purposes (not including the growing of timber) unless prior approval has been obtained in accordance with the criteria and procedures established in this section by the Agricultural Lands Condemnation Approval Board. . . See 3 P.S. ¤913 (a) (emphasis added).

The Law exempts certain de minimis highway projects from the submission and review process established by the law. That section of the statute states that

[i]n the case of condemnation for highway purposes (but not including activities relating to existing highways such as, but not limited to, widening roadways, the elimination of curves or reconstruction, for which no approval is required). . . the Agricultural Lands Condemnation Approval Board or other appropriate reviewing body shall approve the proposed condemnation only if it determines there is no reasonable and prudent alternative to the utilization of the land within the agricultural security area for the project. See 3 P.S. ¤913(d)(2)(i) (emphasis added).

In applying that exemption language to the contours of the Exit 7 Project, the Commonwealth Court specifically declared that
[r]elocation of highways and the addition of an interchange involving new ramps and connector roads are clearly outside the scope of the exception, and PennDOT must seek ALCAB approval before it can file a declaration of taking. White v. Pennsylvania Department of Transportation, 738 A.2d 27,32 (1999).

In the Brief for Appellants filed in this Court, PennDOT continues to attempt to force the square Exit 7 peg into the round hole provided by the exemption language.

In these attempts, the agency also continues to mischaracterize the extent of the

-14-

project. Whereas the Exit project may once have been the straightforward construction of an interchange at the location of an Interstate overpass - prior to the 1997 wholesale revisions of the project undertaken in response to the historic resources located in the area - it has evolved into a major undertaking with its own State Route number. As illustrated by the color map which accompanies this Brief , the Exit project will not be constructed, as the agency continues to mis-assert throughout these proceedings, where "Walker Road passes over I-81," but will now be constructed 1,350 feet south of the existing overpass. Record at 45a. The overpass bridge will be demolished, existing road networks will terminate where the bridge once existed, a new bridge will be constructed over a quarter of a mile further south, and an entire road network will be constructed to connect roadways to the new bridge. Record at 23a. Even PennDOT's own depiction of the highway project clearly shows the project's evolution into a massive new construction undertaking which will fundamentally alter traffic flow in the area. Record at 45a. Thus, the Exit 7 Project's impacts clearly surpass those produced by the construction of a routine interchange.

The Commonwealth Court's ruling is in complete accord with the plain language of the Agricultural Area Security Law and with all rules of statutory interpretation. As recognized by the Commonwealth Court, the Exit 7 Project is clearly not the type of de minimis road construction activity contemplated by the limited exemption allowed under the Law. The Commonwealth Court's ruling is also in complete accord with prior decisions issued by the Agricultural Lands Condemnation

-15-

Approval Board (ALCAB) and publicly declared governmental policy on farmland preservation. Finally, the Commonwealth Court's ruling is in complete accord with PennDOT's own treatment of the Exit 7 Project and the agency's historical treatment of projects similar to the Exit 7 Project.

A. The Exit 7 Project is Not Exempted from ALCAB Review by the Plain Language of the Law Nor is it Similar to Those Activities Exempted by the Law.

The Agricultural Area Security Law requires all condemnations which seek to take farmland in active production to be approved by the Agricultural Lands Condemnation Approval Board (ALCAB). The law creates an exception to the ALCAB review process solely for those "activities relating to existing highways such as, but not limited to, widening roadways, the elimination of curves or reconstruction." 71 P.S. ¤106 (d)(1).

This Court has held that it is "axiomatic that a statute must be interpreted according to its terms as enacted" and that courts must "at all times seek to ascertain and effectuate the legislative intent underlying its enactment." Commonwealth ex rel. Varronne v. Cunningham, 73 A.2d 705 (1950); Pennsylvania Financial Responsibility Assigned Claims Plan v. English, 664 A.2d 84 (1995). Clearly, under a plain language reading of the subsection through which the Department seeks prophylactic protection against review by ALCAB, the Exit 7 project would not be exempted from review, simply because the Exit 7 Project is not a widening of a roadway, it is not a project to eliminate curves and it is not a project intended to reconstruct a roadway. Even in its own tortured interpretation of the law as applied to the project, PennDOT admits that

-16-

the Exit 7 Interchange involves activities encompassing more than simply widening a roadway, eliminating a curve, or reconstructing a roadway.

This plain language reading of the law, which exempts only de minimis highway activities from ALCAB review, is also supported by a contemporary interpretation of the language which appeared in the December, 1979 issue of the Pennsylvania Farmer magazine. Under the "Capitol Capsules" section, the magazine addressed identical language from Act 100 of 1979, stating that the law provided that "[s]ome minor condemnations are exempt, such as for widening a road or correcting a curve." Suppl. Record at 2s.

If this Court determines that the plain language of the law does not explicitly resolve the question, then this Court "must ascertain the General Assembly's intent" and construe the statutory provisions accordingly. DeLelllis v. Borough of Verona, 660 A.2d 25 (1995).

The United States Supreme Court and Pennsylvania courts have consistently applied the statutory principle of interpretation that, in the absence of clear legislative intent to the contrary, the appearance of a general term with a set of more specifically identified items limits the meaning of the general term to the same class of persons or things as those specifically enumerated. See Breininger v. Sheet Metal Workers International Association Local Union Number 6, 493 U.S. 67 (1989) (doctrine restricts application of the general term to things that are similar to those enumerated); Steele v. Statesman Insurance Company, 607 A.2d 742 (1992).

This principle of statutory construction, referred to as ejusdem generis , as applied to the instant case, means that the general term "activities related to existing

-17-

highways" is limited to those activities that are similar in nature to those activities more specifically enumerated, i.e. "widening roadways", "elimination of curves" and "reconstruction."

This principle of statutory interpretation has been applied by this Court in limiting the meaning of general terms to the set of more specifically identified items appearing after the general term. In McClellan v. Health Maintenance Organization of PA, 686 A.2d 801 (1996), this Court reviewed the scope of persons protected under confidentiality provisions of the Peer Review Act, from revealing information provided on medical personnel pursuant to the Act. Specifically, this Court considered whether the particular health maintenance organization before the Court fell within the definition of a "professional health care provider" whose communications were privileged under the Act. Id. at 804-05. A "professional health care provider" was defined in Section 2 of the Act as "individuals or organizations who are approved, licensed or otherwise regulated to practice or operated in the health care field under the law of the Commonwealth, including, but not limited to" a list of eleven persons and entities. Id. Pursuant to this Court's affirmance of the Superior Court's conclusion that the health maintenance organization was not a "health care provider", this Court's opinion recognized the rule of statutory interpretation that general terms followed by the enumeration of more specific terms limits the scope and meaning of those general terms. Id. at 806.

Following the reasoning used in McClellan, the enumerated activities under the Agricultural Area Security Law provisions have several aspects in common, all of

-18-

which are dissimilar to the contours of the Exit 7 Project. First, all of the enumerated activities in the law either take place on, or expand upon, the existing roadbed. Reconstruction and widening of roadways both occur through the use of the mainline of the existing roadbed. The elimination of the curves in a road still involves the expansion of the existing roadbed, while continuing to use the same mainline of the previously existing roadway. Second, none of these activities link and create vehicular access between roads that, prior to the project, were not linked and accessible. The Exit 7 Project, on the other hand, does not use the mainline of existing roadbeds, nor does it serve to expand upon existing roadbeds; and it will create a connecting network between roadways that are not currently linked and accessible. As such, it is clear that the Exit 7 Project is not similar in scope to those de minimus activities specifically excluded from ALCAB review by the law.

The sole support offered by PennDOT for its' contention that the term "include" is a "word of enlargement, not limitation", and therefore that the existing highway exception should be applied to any activity relating to existing highways, is Pennsylvania Human Relations Commission v. Alto-Reste Park Cemetery, 453 Pa. 124, 306 A.2d 881 (1973). The failure of the Department to explain the factual circumstances of the case can best be explained by the clear inapplicability of the case to the instant dispute.

In Alto-Reste, this Court was asked to determine whether a public cemetery's refusal to bury an African-American violated the Pennsylvania Human Relations Act. That Act prohibited discrimination by the owners or agents of any "place of public accommodation, resort or amusement" within the Commonwealth. Id. at 885. "Place of public accommodation" was defined as "any place which is open to, accepts or solicits the patronage of the general public, including but not limited to" several enumerated places of accommodation. Eleven months after passage of the original Act, the law

-19-

was amended to specifically include cemeteries in the listing of places of public accommodation. Id.

In determining that cemeteries were included in the coverage under the original act, the Court declared that cemeteries - due to their "unquestionable public importance" and the "public need for cemeteries" were similar in nature to the public places listed in the act, and therefore, were included under the coverage of the Act. Perhaps more importantly, this Court specifically determined that the Pennsylvania Human Relations Act must be "construed liberally for the accomplishment of its purposes" - namely, the elimination of discrimination in public places. Id. at 886.

Here, there is no issue of invidious racial discrimination to remedy by broadly interpreting a human rights statute. In fact, the policy concerns expressly declared within the Agricultural Area Security law press in exactly the opposite direction - for a strict construction of those de minimis activities specifically exempted from ALCAB review under the statute.

Under PennDOT's interpretation of the law, the agency urges this Court to ignore the language of the law, and simply declare that the Department is exempted from ALCAB review for any project that involves an "existing highway". Such an interpretation would give the Department carte blanche to ignore the requirement of ALCAB review for almost any roadway that connects into any other roadway, since by virtue of that connection - under the agency's interpretation - the new road becomes an activity relating to an existing highway. Such an interpretation is entirely inconsistent with the clear legislative directive that farmland within Agricultural Security Areas should be specially protected. The Department's suggested interpretation, and the ramifications of adoption of that interpretation, were perhaps best underscored by the agency's bald declaration in Commonwealth Court that

-20-

[t]he question of whether a proposed highway project involves 'activities
relating to existing highways' is not a matter of degree, length, cost or
extent and nothing in the law provides for any such limitations.
See Brief for the Respondents at 20.

This tortured interpretation of the law was advanced with the proposition that the Department, "in its discretion", was the sole entity which would determine whether or not to "convene ALCAB upon a formal request." See Brief for the Respondents at 19.

B. Previous Rulings of the Agricultural Lands Condemnation Approval Board (ALCAB) and the Commonwealth's Public Policy on Farmland Preservation Support the Commonwealth Court's Ruling

Several rulings issued by the Agricultural Lands Condemnation Approval Board (ALCAB) support the Commonwealth Court's declaration that the Exit 7 Project is not exempt from ALCAB review. These decisions not only illustrate the Board's assertion of jurisdiction over these projects, they also show that the Department itself has previously recognized that projects similar to the Exit 7 Project required Board review. Each decision has been included within the Supplemental Record due to the lack of any formal reporting mechanism for these decisions, and the decisions were also appended to the Whites' Motion for Summary Relief in the Commonwealth Court Suppl. Record at 10s - 68s.

In the principal case, In Re: Welsh Road Corridor Improvement Project , decided in 1993 by ALCAB, the Department planned to relocate and widen portions of Dreshertown Road in Montgomery County. In preparation for the construction, the Department formally requested that the Board review and approve their condemnation plans. The proposed condemnation impacted seven parcels of property - six parcels to be affected by the widening of the highway, and one parcel to be affected by the relocation of the highway. Citing the exemption from jurisdiction under the Agricultural

-21-

Security Area Law for "widening" of roadways, the Board ruled that the first six parcels were not within its jurisdiction.
The seventh parcel to be affected, however, was ruled to be within the Board's jurisdiction specifically because the seventh parcel involved "relocation or new construction" and not the "widening of the existing roads adjacent thereto." The Board then found that PennDOT had failed to show that a "prudent and feasible alternative" did not exist to the planned condemnation of the farmland within the seventh parcel, and consequently denied PennDOT's request.

The Dreshertown determination therefore held that the condemnation for a "relocation" and "new construction" was required to undergo review by the Board. Under that ruling, any construction of a new interchange would be subject to ALCAB's jurisdiction. Thus, the Exit 7 Project - consisting of road relocation, construction of new roadway for the exit ramps and connector roads, the construction of a new overpass bridge, and the demolition of the existing bridge in a new location - would certainly be subject to the jurisdiction of the Agricultural Lands Condemnation Approval Board (ALCAB) under the reasoning used in the Dreshertown case.

In addition, the Dreshertown case is important for another reason: it contains a Department of Agriculture legal opinion which uses a test identical to the one adopted by the Commonwealth Court in this case. A portion of the Record for the Dreshertown decision includes a letter from the Department of Agriculture's Legal Office, which offers an informal opinion on ALCAB's jurisdiction over the Dreshertown relocation and widening project, and asserts a standard to be used to determine the applicability of ALCAB review. Under that opinion, the Legal Office used the test of whether the project would "put a road where there was no road before, rather than rebuilding or expanding upon an existing roadbed." Letter from Assistant Counsel Dwight-Jared Smith to Jayne McColl, February 22, 1993. Suppl. Record at 10s. As summarized by

-22-

the Commonwealth Court, this "existing roadbed" test clearly does not exempt a project of the size and magnitude of the Exit 7 Interchange from ALCAB review.

In 1995, the Department also submitted plans for ALCAB approval which proposed the condemnation of farmland for relocation and improvements intended for eight miles of Route 22 west of Lewistown. Four miles of the project were slated for improvements to the existing highway, "such as the addition of a center turn lane and shoulder improvements." In Re: Mifflin County, Pennsylvania, S.R. 0022, Section C02, U.S. 22 Improvements at Lewistown. (ALCAB July 26, 1995). Suppl. Record at 18s. Regardless of the reconstruction and widening aspects of the project, PennDOT determined that the project required ALCAB review.

The Board has also assumed jurisdiction over several other cases - including the Department's plans for the construction of a Safety Rest Area on Interstate 78 in Upper Macungie Township, Lehigh County. In Re: S.R. 0078 Section 01R, I-78 Eastbound Safety Rest Area, Lehigh County (ALCAB 1994) Suppl. Record at 50s. In that case, the project to be constructed consisted of a Rest Area and its entrance and exit ramps. The land to be condemned consisted of fifteen (15) acres categorized as prime farmland soils. The Department recognized the jurisdiction of the Board to review the project and the Board explicitly declared its jurisdiction over the project.

In 1990, the Department submitted the Interstate 81 Connector Project to the Board and the Board assumed jurisdiction over the project. In Re: I-81 Connector (ALCAB 1990). Suppl. Record at 60s. In that case, the project consisted of the proposed taking of 59.1 acres of farmland for a three mile, four lane, limited access highway which included an interchange with Creekview Road. Even though the project served to connect two existing highways - the Carlisle Pike and Interstate 81 - the agency submitted the plans to the ALCAB for its review.

-23-

In 1988, the Department submitted condemnation plans for the construction of the Mon Valley Expressway to the Board. In Re: Application of Pennsylvania Department of Transportation; L.R. 1125, Washington County (ALCAB 1988) Suppl. Record at 65s. That project consisted of the proposed condemnation of 17.7 acres of productive farmland to construct part of a north-south artery that would connect existing roads in Pittsburgh and West Virginia. Again, even through the project served to connect two existing highways, the agency determined that review by the ALCAB was legally required.

Finally, in 1985 - in a project eerily similar to the Exit 7 Interchange - the Department submitted a project for ALCAB review that involved the replacement of a bridge over Bald Eagle Creek and the construction of a highway interchange that was slated to condemn farmland. In the Matter of: Department of Transportation with Respect to the Harold Williams Farm (ALCAB, October 1, 1985) Suppl. Record at 33s. Submission of this project for ALCAB review is clearly incongruous with the agency's assertions that the Exit 7 Project is exempted from review under the Agricultural Area Security Law.

It is apparent from this cursory review of prior, similar highway projects, that the Department has consistently recognized the Board's jurisdiction over projects dealing with existing highways. It is also apparent that the Board itself has exercised jurisdiction over several projects which PennDOT now contends are exempt from the requirement of ALCAB review. Not only does this review of Board decisions reveal that PennDOT's suggested interpretation of the law lacks any foundation, it also reveals that PennDOT's arbitrary application of its suggested interpretation is merely an attempt to exempt a highly controversial interchange project from ALCAB review.

-24-

Not only is the ruling of the Commonwealth Court entirely consistent with the prior rulings of the ALCAB on PennDOT submissions of proposed condemnations for projects relating to existing highways, the Court's ruling is required by the stated intent of the Agricultural Area Security Law and the public policy of the Commonwealth on farmland preservation.
It is the declared public policy of the Agricultural Area Security Law and the public policy of the Commonwealth of Pennsylvania to preserve active agricultural lands. Section 2 of the Agricultural Area Security Law succinctly declares that

[i]t is the declared policy of the Commonwealth to conserve and protect and to encourage the development and improvement of its agricultural lands for the production of food and other agricultural products. It is also the declared policy of the Commonwealth to conserve and protect agricultural lands as valued natural and ecological resources which provide needed open spaces for clean air, as well as for aesthetic purposes.
. . .
[m]any of the agricultural lands in the Commonwealth are in jeopardy of being lost for any agricultural purposes. . . It is the purpose of this act to provide means by which agricultural land may be protected and enhanced as a viable segment of the Commonwealth's economy and as an economic and environmental resource of major importance. 3 P.S. ¤902.

In addition, the Agricultural Area Security Law declares that it was the purpose of the Act to ensure the protection of farmland by those landowners who choose to protect their farmland. Therefore, the Act stated that it was also the purpose of the legislation to

[e]ncourage landowners to make a long-term commitment to agriculture by offering them financial incentives and security of land use [and p]rotect farming operations in agricultural security areas from incompatible nonfarm

-25-

land uses that may render farming impracticable [and a]ssure permanent conservation of productive agricultural lands in order to protect the agricultural economy of this Commonwealth. 3 P.S. ¤902(1-3) (emphasis added).

Through Executive Order 1997-6, Governor Ridge ordered and directed "that all state agencies under the Governor's jurisdiction should work together to preserve agricultural lands." Furthermore, the Executive Order declared the following:

1. It is the policy of the Commonwealth to protect, through the administration of all agency programs and regulations, the Commonwealth's "primary agricultural land" from irreversible conversion to uses that result in its loss as an environmental and essential food and fiber resource.

2. Commonwealth funds and Commonwealth administered federal funds will not be used to encourage the conversion of "primary agricultural land" to other uses when feasible alternatives are available.

Through the Executive Order, the Governor has established a priority ranking system for the protection of farmland resources. Farmland within an Agricultural Security Area (ASA) received the second highest priority in this ranking, which mandates that "[s]tate agencies shall provide protection" to those lands. See Executive Order 1997-6, at 4 P.S. ¤7.303 (b)(2).

In a prior administration, then-Governor Casey also declared that a primary objective of state government should be to "[p]reserve the Commonwealth's prime agricultural land." 23 Pa Bull. 4487 (September 23, 1993).
The Greene Township Board of Supervisors (the local municipality in which the Exit Interchange would be constructed) has vehemently opposed the construction of the Exit 7 Project, due to concerns about the loss of agricultural land and corresponding impact to the integrity of Agricultural Security Areas (ASA's) within the

-26-

Township. Record at 102a-103a. In a submission of July 31, 1995 to PennDOT, which was signed by the entire Board, the Township stated that the Department's decision to refuse to submit the condemnation plans to ALCAB was "seriously flawed." See Comments on the Farmlands Section of the Interstate 81 Interchange: Final Environmental Impact Statement, Submitted July 31, 1995.

In perhaps the most substantial statement of policy to be made by the Township, the Supervisors have expended over $800,000 in protecting the agricultural and historic resources threatened by the Exit. Record at 110a. These expenditures were made in addition to the vocal role played by the Township in raising concerns to the Governor, to the Legislature, and to other public officials. The testimony of Greene Township Supervisor Paul Ambrose at the Preliminary Injunction hearing described the prior and continuing opposition to the Exit 7 project on agricultural preservation and taxation grounds. Record at 100a to 123a.

These efforts and public declarations of policy on farmland preservation are not surprising: according to the USDA Census of Agriculture, over 15,000 acres of farmland have been lost in Franklin County alone between 1982 and 1992. See County Commissioners Association of Pennsylvania, Resources Manual: Sustainable Communities Program in Pennsylvania Counties (1998).

Therefore, the Commonwealth Court's ruling in favor of the Whites is entirely consistent with prior rulings by the ALCAB and with the Commonwealth's declared public policy on the issue of farmland preservation. The Commonwealth Court's interpretation of the law - which only exempts de minimus highway construction activities from ALCAB review - ensures that consistency of interpretation is maintained by the courts and agencies, and that the public policy on farmland preservation is respected and implemented.

-27-

C. PennDOT's Own Treatment of the Exit 7 Project and Projects
Similar to the Exit 7 Project Supports the Commonwealth Court's Ruling That the Exit is Subject to ALCAB Review

As explored in the prior section of this Brief, the agency's own prior actions in submitting similar highway projects to the ALCAB for review reveals the arbitrary nature of the agency's refusal to submit the Exit 7 Project to the Board. In addition, and contrary to the agency's current arguments, PennDOT has sought approval from ALCAB for condemnation of protected farmland associated specifically with the construction of highway interchanges. The agency has sought ALCAB approval for the enlargement of existing intersections (along U.S. Route 322 in Centre County), and for the construction of an interchange on the Mon-Valley Expressway with Interstate 70 in Allegheny and Washington Counties. Suppl. Record at 65s. The decision to seek approval for the Mon-Valley Expressway condemnation was sought in 1988, long after the Department's 1986 alleged "determination" that interchanges along existing highways were exempt from ALCAB approval. Record at 184a. At best, the Department has no clear position regarding the issue of whether certain interchange projects fit within the exemptions established in Act 43 to ALCAB's jurisdiction. At worst, the agency is refusing to submit a proposed condemnation - scheduled to take land within two Agricultural Security Areas (ASA's) - to a review of the ALCAB because of the controversial nature of the project.

The documentary record in this matter indicates that the Department has only very recently embraced the improper conclusion that the construction of Exit 7 does not require prior approval from ALCAB. In the Draft Environmental Impact Statement for the Project issued in 1994, the Department stated that "[b]ecause productive agricultural farmland and Agricultural Security Areas would be involved with any of the

-28-

build alternatives, a hearing with the [ALCAB] would be necessary." Suppl. Record at 5s. In addition, the Scope of Work provided to the Department's consultant, in connection with performing services related to the assessment of farmland impacts, required that the selected consultant make a presentation to ALCAB.

Even more recently, in 1995, the Department restated its view in its January, 1995 Point of Access Report that it was legally required to obtain approval from ALCAB prior to implementing construction of the Exit 7 Project. In that document, the agency declared that

"[a]pproval from the Agricultural Lands Condemnation Approval Board must be obtained by presenting proof that no reasonable and prudent alternative to the taking of productive farmlands and productive farmland within an Agricultural Security Area is available." Suppl. Record at 7s-8s.

Only during the later stages of the project - in the Final Environmental Impact Statement and the Record of Decision - did the agency fundamentally reverse itself and declare that ALCAB review was legally unnecessary for the Project's impact on active farmland.

In addition, from the inception of the Project, the Department of Transportation has treated the Exit 7 Project as the construction of a new highway. This is evidenced by their assignment of a separate State Route number (S.R. 8016) to the construction project. Even in its Record of Decision (ROD) released on March 26, 1999, the Department described the project in new construction terms:

[the project] consists of the construction of a diamond interchange with a new bridge over I-81 approximately 412 meters (1,350 feet) south of the existing Walker Road (T-517) overpass. . . The existing Walker Road overpass will be removed and a new bridge over I-81 will be constructed 412 meters (1,350 feet) south of the existing overpass. As Walker Road will be relocated during the construction of this project, existing Walker Road will terminate on both sides of I-81. See Record of Decision, Federal Highway Administration, Interstate 81 Interchange Project, S.R. 8016, Franklin County, Pennsylvania at 5 (emphasis added); Suppl. Record at 9s.

-29-

Thus, the agency's own treatment of the Exit 7 Project and its treatment of previous interchange projects supports the Commonwealth Court's ruling in this case.

III. THE COMMONWEALTH COURT UNANIMOUSLY AND CORRECTLY HELD THAT IT HAD JURISDICTION OVER THE WHITES' CHALLENGE TO THE AGENCY'S DETERMINATION THAT ALCAB REVIEW WAS LEGALLY UNNECESSARY

Commonwealth Court Judge Kelley's concurring and dissenting opinion to that Court's decision solely dissented from the Court's finding that the Exit 7 Project did not qualify as an activity "relating to existing highways". Record at 244a. Judge Kelley concurred with the Court's assertion of jurisdiction over this dispute.

The Court correctly assumed jurisdiction over the dispute in this case by determining that the Whites' action concerned the agency's failure to comply with "statutory procedures requiring an ALCAB review and determination" and therefore, that the Whites' action was not a challenge to the "declaration of taking or [] a matter directly related to condemnation." White at 30. Thus, the action was not brought to challenge "condemnation proceedings", but to appeal the erroneous agency determination that ALCAB review was legally unnecessary. See Appeal of Faranda, 216 A.2d 769, 770 (1966) (stating that preliminary objections are only the exclusive method for challenging the condemnation process itself).

PennDOT advances two arguments in an attempt to reverse the Commonwealth Court's assertion of jurisdiction. First, the agency strenuously argues that the ALCAB review process "has nothing to do with the highway planning process or, for that matter, any other aspect of federal or state environmental planning, study or highway

-30-

design." Br. Appellant at 20. As illustrated by the arguments which follow, PennDOT is plainly wrong. As their own planning documents attest, not only is ALCAB review an integral part of PennDOT's planning process - the approval of a Record of Decision (ROD) for a highway project prior to the satisfaction of ALCAB concerns is expressly forbidden.

The Commonwealth Court recognized this point when it explained that we addressed a matter factually similar to the Whites' in In re Legislative Route 58018, wherein we stated that when the challenge is to a collateral procedure to be followed as part of highway planning -- and not a challenge to the adequacy of security, to the declaration of taking itself, or to a matter directly related to the declaration -- the matter is justiciable only by invocation of Commonwealth Court's original jurisdiction in equity.
. . .
In the present case, the Whites challenge PennDOT's failure to comply with statutory procedures requiring an ALCAB review and determination. As in Route 58018, the Whites' challenge is to a collateral procedure to be followed as part of highway planning. . . White v. PennDOT, 738 A.2d 27, 30 (Pa.Cmwlth. 1999).

It is also clear that the dispute was ripe for review. All environmental and highway planning documents had been completed, the Record of Decision (ROD) had been approved by the Federal Highway Administration (FHWA), and PennDOT had announced its intention to make imminent entry onto the Whites' farmland.

PennDOT's second argument contends that the ALCAB legislation does not impose requirements on highway planning procedure, but that ALCAB review is a direct restraint on the right and power of the agency to exercise eminent domain. Therefore, the agency contends, the Whites could only bring their challenge through the filing of preliminary objections to a declaration of taking, and the assertion of jurisdiction by the Commonwealth Court was erroneous. Br. Appellants at 21. To arrive at that conclusion, the agency urges that this Court adopt a judicial test which

-31-

would have this Court determine whether the ALCAB review provisions are either (1) direct restraints upon the right or power of PennDOT to condemn farmland (in which case, PennDOT urges, preliminary objections are the sole vehicle for raising a landowner's challenge) or whether the ALCAB review provisions (2) solely impact the agency's planning process for highway construction (in which case, PennDOT urges, a challenge in equity is the sole vehicle for raising a landowner's challenge). Whereas PennDOT claims that such a judicial test is already employed by Pennsylvania Courts, a cursory review of relevant caselaw reveals otherwise.

This Court's caselaw, as well as cases decided by the Commonwealth Court, emphasize that the correct inquiry in this case to determine jurisdiction is whether the challenge by the landowner is to the (1) "sufficiency of the security", the "declaration of taking itself", or to a procedure that is "directly related to the filing of the declaration of taking" versus (2) a challenge to a "collateral procedure to be followed as part of highway planning." By its very terms, as applied to the Whites' challenge, it is utterly impossible for this challenge to be to the sufficiency of the security, to the declaration of taking, or to a procedure directly related to the declaration for one overriding reason: no declaration of taking has been filed and the condemnation process has not been initiated.

Thus emerges the general rule that challenges to the declaration of taking itself can solely be raised by preliminary objections, while other challenges are properly heard in equity. Appeal of Gaster, 556 A.2d 473, 478 (Pa. Cmwlth.1989) (stating that preliminary objections are proper only if the challenge is to the "sufficiency of the

-32-

security or the declaration of taking itself" and procedures "directly related to the filing of the declaration of taking."); In Re Legislative Route 58018, 375 A.2d 1364 (Pa. Cmwlth. 1977) (stating that only a challenge to the "sufficiency of the security", the "declaration of taking itself", or a procedure "directly related to the filing of the declaration of taking" are challengeable by filing of preliminary objections).See Simco Stores v. The Redevelopment Authority of the City of Philadelphia, 317 A.2d 610, 613 (1974) (stating that "it is the clear intent of [the filing of preliminary objections] to dispose of challenges to the validity of a condemnation as soon as possible after the taking.")(emphasis added); Appeal of Faranda at 770 (stating that the filing of preliminary objections shall be the sole and exclusive remedy "available to condemnees to challenge the condemnation.") (emphasis added); Valley Forge Golf Club v. Upper Merion Township, 221 A.2d 292 (1966) (stating that the filing of preliminary objections are the exclusive method of "challenging the condemnation proceedings.") (emphasis added); Redding v. Atlantic City Electric Company, 269 A.2d 680 (1970) (stating that equity has no jurisdiction "in a condemnation subject to all provisions of the Eminent Domain Code") (emphasis added).

Either way, as a challenge to the failure of the agency to adhere to statutorily required planning procedures, or as an appeal of the agency's final determination - that ALCAB review was legally unnecessary prior to condemnation - and in the absence of the initiation of condemnation proceedings, the Commonwealth Court's assertion of jurisdiction was proper and in accordance with relevant precedent of this Court.

Public policy also supports this interpretation of the jurisprudence of this Court and the Commonwealth Court. The early resolution of these types of challenges prior

-33-

to the initiation of the formal condemnation process actually serves to promote the orderly construction of highways because early resolution establishes agency responsibility for agricultural land evaluation, eliminates confrontations between individual landowners and agencies, and requires that agencies place agricultural preservation issues on a priority footing with other planning components. This, in turn, ensures that public policy favoring farmland preservation is accurately reflected in the agency's planning process.

A. ALCAB Review is an Integral Part of PennDOT's Highway Planning Process as Evidenced by PennDOT's Own Record Produced in Support of Its' Determination That ALCAB Review was Legally Unnecessary.

In its Brief, PennDOT argues that ALCAB review "has nothing to do with the highway planning process or, for that matter, any other aspect of federal or state environmental planning, study, or highway design." Br. Appellant at 20. However, PennDOT's own documents - produced for the Commonwealth Court as part of the Record used by the agency to determine that ALCAB review was unnecessary for the Exit 7 Project - show PennDOT's assertions to be completely false.

In the agency's Reply of Respondents' in Opposition to Motion for Summary Relief, PennDOT declared that

[i]t is apparent that the Department has an administrative policy applicable throughout the Commonwealth which contradicts the Whites' assertions that the Department's actions in this case were 'arbitrary and capricious.' Reply at 10. Record at 158a.

In support of that assertion, the agency attached PennDOT publication #324, entitled "Agricultural Resources Evaluation Handbook". The Handbook's introduction declares that

-34-

[t]he [PennDOT] Bureau of Environmental Quality is committed to mainstreaming and institutionalizing agricultural resource considerations into all aspects of transportation planning and development. The agricultural resource evaluation process will be incorporated into the Pennsylvania Department of Transportation's transportation projects development process for the preparation of Environmental Impact Statements, Environmental Assessments, and Categorical Exclusion Evaluations. In order to achieve this goal, the agricultural resource management actions described herein have been developed to identify potential resources early in the development process in order to avoid an/or minimize impacts.
Handbook at Cover Page. Record at 163a. (emphasis added).

On the opening page of the Handbook, the document states that PennDOT's Agricultural Resource Evaluation Process includes the identification of "internal administrative activities, data collection and impact assessment, documentation of findings, and Agricultural Lands Condemnation Approval Board (ALCAB) coordination." Handbook at 9. Record at 166a. Finally, the Handbook illustrates the integration of the agricultural resource evaluation process into PennDOT's ten-step transportation project development process, explaining that

[d]ocumentation of the findings will occur during Step 6 of the EIS process. If a FAR [Farmland Assessment Report] is to be circulated to the PDA [Pennsylvania Department of Agriculture] and ALCAB, it will occur after the public hearing for the Draft Environmental Impact statement.
. . .
the FAR would have to be submitted early enough so that the ALCAB hearing would be held prior to circulating the Final EnvironmentalImpact Statement (FEIS). The Federal Highway Administration (FHWA) will not approve the Record of Decision (ROD) without the ALCAB ruling. Timing is crucial at this point
. . .
Handbook at 14. Record at 171a. (emphasis added).

Even in PennDOT's Brief in Opposition of Petitioners' Motion for Summary Relief, the agency admitted that "the FEIS [Final Environmental Impact Statement] contains a legal opinion and supporting documentation dated February 7, 1995, which, in part, formed the basis of the Department's conclusion that the project is exempt from ALCAB review." Brief at 25.

-35-

A cursory review of the planning documents for the Exit 7 Interchange reveal PennDOT's application of the agricultural resources evaluation to the Exit 7 Project. In the agency's Draft Environmental Impact Statement, produced in May of 1994, PennDOT determined that

[b]ecause productive agricultural farmland and Agricultural Security Areas would be involved with any of the Build Alternatives, a hearing with the Agricultural Lands Condemnation Approval Board (ALCAB) would be necessary if any of these is selected as the Preferred Alternative. PennDOT would present the preferred alternative to the ALCAB. ALCAB approval is necessary prior to the Department's condemnation of productive agricultural lands and/or agricultural land within an ASA. . .
. . .
Farm operators would be interviewed prior to the ALCAB proceedings by a PennDOT representative and PennDOT would prepare a Farmland Assessment Report for the ALCAB. DEIS at IV-52. Suppl. Record at 5s.

In the agency's Point of Access Report, prepared in January of 1995, the agency continued its process of planning for ALCAB review, stating that

[a]ny of the Build Alternatives selected would involve farmlands. . . Aside from direct impacts, non-farmable areas would be created and farmed properties would be segmented or further segmented. Some farmers may experience increased difficulties negotiating machinery on roads now used to access farmland located on the opposite side of I-81. The new interchange alternatives could devaluate the remaining farmland for farming. Approval from the Agricultural Lands Condemnation Approval Board must be obtained by presenting proof that no reasonable and prudent alternative to the taking of productive farmlands and productive farmland within an Agricultural Security Area is available.

Justification for an Additional Interchange, I-81 Interchange, S.R. 8016, Section 001 (emphasis added) Suppl. Record at 7s-8s.

Thus, contrary to PennDOT's strenuous assertions, the ALCAB review and approval process has been completely integrated into the highway planning process for the agency. In fact, the agricultural evaluation process and ALCAB review are so completely integrated that the Federal Highway Administration will not approve the

-36-

project by issuing a Record of Decision (ROD) in the absence of the satisfaction of ALCAB concerns. As such, the requirements imposed by the ALCAB review process are clearly "procedure[s] to be followed as part of highway planning" (White at 30) and thus, the Commonwealth Court properly assumed jurisdiction over the case.

The agency contends that the Commonwealth Court's reliance on In Re Legislative Route 58018, 375 A.2d 1364 (Pa. Cmwlth. 1977), to find that the Whites' challenge was to a collateral procedure followed as part of highway planning, is legally erroneous. Instead, the agency asserts, the analogous precedent is found within Faranda Appeal, 420 Pa. 295, 216 A.2d 769 (1966). Br. Appellant at 20. Contrary to the agency's objection, the Commonwealth Court correctly applied In Re Legislative Route 58018 to the Whites' claims in this case.

In Route 58018, the Pennsylvania Department of Transportation filed a Declaration of Taking in connection with a project to repair and replace bridges along a legislative route. Route 58018 at 1364. The condemnees filed preliminary objections contending that the agency had failed to comply with 71 P.S. ¤512(b) which required a determination of various social, esthetic, and environmental effects of "any transportation route or program requiring the acquisition of new or additional right-of-way." Id. at 1365. The County Court held that the condemnee's objections were properly raised via preliminary objections. On appeal, the Commonwealth Court reversed the trial court and found that the requirement of preparation of the environmental impact statement was a challenge to a "collateral procedure to be followed as part of highway planning" and thus, was not a challenge to the "sufficiency of the security or the declaration of taking itself." Id. at 1367. Thus, the Court held that the claims could only be properly raised "within our original jurisdiction in equity." Id. at 1368.

-37-

In Faranda Appeal, however, this Court dealt with a challenge to a Declaration of Taking which directly questioned the condemnor's "power and right" to initiate condemnation proceedings. Faranda at 772. Specifically, the condemnee argued that by statute, the condemnor Authority only had the power to condemn blighted areas, and the area being condemned was not a blighted area. Id. at 772. The County Court dismissed the preliminary objections and the Commonwealth Court affirmed the trial court's dismissal. The condemnee then appealed to this Court, which explained that the nature of the condemnees' objection - directly to the power or right exercised by the municipal Authority in filing the Declaration of Taking - was uniquely suited to the vehicle of preliminary objections, and that a suit in equity was not the proper method to challenge the Authority's Declaration of Taking.

Clearly, it is Route 58018 which is controlling, not Faranda Appeal. In fact, in Route 58018, the Appellees specifically urged that court to apply Faranda Appeal, and the court refused, finding the case to be inapplicable and declaring that

[h]ere there can be no question on the threshold issues faced in Faranda Appeal -- that the proposed condemnation is for a public use and that appellant has the power to condemn for such public use. Especially in light of the mandate of our Supreme Court in Simco Stores v. Redevelopment Authority, [], such claims are properly raised only before this Court within our original jurisdiction in equity. Route 58018 at 1368 (citation omitted).

In the referenced case, Simco Stores v. Redevelopment Authority of Phila., 317 A.2d 610 (1974), this Court held that "[w]e have previously held that the scope of preliminary objections under Section 406(a) is to be limited. . . Accordingly, appellants cannot now raise by preliminary objection to the taking grievances that the Authority failed to comply" with various local ordinances. Simco at 614. The holding by this Court in the Simco case also completely undermines the contention by Amicus Borough of Chambersburg that only "the Commonwealth Court, not this Court, has

-38-

concluded" that challenges to collateral procedures may not be raised via preliminary objections.

Thus, Faranda is inapplicable for several reasons. First, the municipal authority possessed very limited condemnation powers, conferred by statute, and thus, only possessed the power to condemn properties which were blighted and in need of redevelopment. As recognized by the Commonwealth Court in the Route 58018 case, the condemnees' objections in Faranda solely challenged the right and power of the Municipal Authority to file a Declaration of Taking to condemn land which was not, in fact, blighted. In this case, however - as proclaimed by the Department - "the power to acquire property. . . for all transportation purposes is conferred upon the Department" by the Administrative Code of 1929. Thus, PennDOT's condemnation powers are not similarly circumscribed.

Second, the condemnation process had been initiated in Faranda, and therefore, the condemnees exercised their option to challenge the filing of the Declaration of Taking itself through the assertion of preliminary objections. In the instant case, however, condemnation proceedings have not been initiated and therefore, the Whites' challenge cannot possibly be to the Declaration of Taking or the condemnation procedures themselves. Finally, in Faranda, the challenge was not ripe for review until a Declaration of Taking had been filed, precisely because the challenge itself was to the right or power of the Authority to exercise its condemnation powers and not to the failure of the agency to comply with statutorily required planning procedures. In the instant case, however, the nature of the challenge is fundamentally

-39-

different because the Whites' action is focused entirely upon the agency's determination that ALCAB review was legally unnecessary as a part of the highway planning process.

Route 58018 was also held to be controlling in the Appeal of Gaster. In that case, the Commonwealth Court addressed the filing of preliminary objections which asserted noncompliance with federal regulations dealing with the mitigation of environmental impacts to wetlands caused by highway construction. Id. at 478. The condemnees contended that failure to follow the federal regulations deprived PennDOT of the right or power to condemn their land for wetlands replacement and therefore, that their objections were properly raised through preliminary objections filed to the Declaration of Taking. The Commonwealth Court affirmed the lower court's ruling, which dismissed the preliminary objections, and cited to the Route 58018 case for the holding that

this Court has held that a challenge to the Department's compliance with state and federal environmental procedures during the planning process of a roadway is not within the scope of Section 406, but is collateral to the condemnation proceedings and justiciable only through proceedings in equity. Id.

Accordingly, the Commonwealth Court ruled that Gaster's challenge dealt not with a challenge to the "sufficiency of the security or the declaration of taking itself" and therefore, could only properly be raised through a suit in equity. Id. The inapplicability of Appeal of Faranda to the Gaster case is best evidenced by the complete absence of the case from the condemnees' arguments and the Court's opinion.

-40-

B. The Nature of the Whites' Challenge, as a Review of the Agency's Final Determination That ALCAB Review Was Legally Unnecessary, Supports the Assertion of Jurisdiction by the Commonwealth Court

As stated throughout these proceedings by the Whites, their action sought a review by the Commonwealth Court of PennDOT's final determination that ALCAB review was legally unnecessary for the construction of the Exit 7 Project. The dispute was ripe for review because all planning documents had been completed and a final Record of Decision (ROD) had been approved by the Federal Highway Administration (FHWA) for the project. Suppl. Record at 9s. In addition, the action was commenced days after the Whites received notice on April 26, 1999 of imminent entry onto their farmland by the agency. Record at 24a.

PennDOT contends that objections to PennDOT's determination that ALCAB review was legally unnecessary can only properly be brought as preliminary objections to a Declaration of Taking. Br. Appellant at 20. The agency argues that the requirement of ALCAB review is a direct restraint on the condemnation process itself, and therefore, the Plaintiffs may only obtain relief through the filing of preliminary objections. Id. The agency, however, fails to support these propositions with any precedent and fails to rebut the Whites' contention that jurisdiction in this case was proper because the Whites' challenge was to the failure of PennDOT to seek ALCAB review during the agency's planning process, and the Whites' challenge was brought in the absence of the initiation of condemnation proceedings.
PennDOT boldly asserts that "[t]he Commonwealth Court's own prior cases show that whether a condemnation must be approved by ALCAB is an issue that must be raised in preliminary objections to a taking." Id. at 22. For that proposition, the

-41-

agency cites two cases which do not stand for that proposition. Id. (citing In re Land Owned by Wexford Plaza Assoc., 674 A.2d 1204 (Pa. Cmwlth. 1996) and In the Matter of New Garden Township, 579 A.2d 459 (Pa. Cmwlth. 1990)).
In Wexford, Pine Township in Allegheny County filed a Declaration of Taking to condemn land necessary for the construction of a new public road to connect an existing road to a shopping center. The Condemnees filed preliminary objections to the Declaration. Wexford at 1206. Five months after filing the original objections, the condemnees attempted to file amended preliminary objections which raised the question of ALCAB review for the first time. The Township asked the Court to dismiss the amended objections as untimely, and the Court granted the Township's request. Id. at 1207. On appeal, the Commonwealth Court found that the County Court had properly dismissed the condemnee's attempt to file amended objections, and thus, the Court did not address the ALCAB issue. Id.

In the instant case, the Commonwealth Court recognized the irrelevance of Wexford, and stated that the case "has no bearing in this case because the issue of the condemnor's failure to seek ALCAB approval was determined to have been waived." White at 30 (Record at 238a). The Court thus correctly accorded the case no precedential value.
The agency also asserts that the New Garden case stands for the proposition that an objection to ALCAB review can only be heard via preliminary objections filed in response to the filing of a Declaration of Taking. New Garden, however, involved a challenge to a Township government's initiation of condemnation procedures after the local government had filed a Declaration of Taking for a sewage treatment facility. The condemnees filed preliminary objections in which they raised the issue that approval from ALCAB was necessary prior to condemnation. Id. at 459. The trial court's determination that ALCAB review was unnecessary was appealed to the

-42-

Commonwealth Court and that Court affirmed the lower court's ruling because only sewage disposal facilities - and not sewage treatment facilities - were specifically subjected to ALCAB review. Id. at 460.

Thus, neither of the cases asserted by the Department supports the agency's contention that questions concerning ALCAB review must be resolved solely through the filing of preliminary objections. The Wexford case is simply inapplicable as precedent because the ALCAB question had been waived by the condemnees. The New Garden case is inapplicable because the factual history of the case differs markedly from the facts which gave rise to the instant case. In New Garden, objections were filed to the Declaration of Taking itself, and the challenge was not brought prior to the initiation of condemnation procedures and after the Township had made a determination that ALCAB review was legally unnecessary.

Amicus Borough of Chambersburg also contends that the Commonwealth Court's decision in Northwestern Lehigh School District v. Agricultural Land Condemnation Approval Board, 559 A.2d 978 (1989), stands for the proposition that ALCAB approval "directly impacts the Department's right to condemn" land, and thus, can only be raised via preliminary objections. Br. Amicus Borough of Chambersburg at 17. A closer examination of the case shows that proposition to be untrue. In Lehigh, a School District appealed an ALCAB ruling by contending that the legislature had unlawfully delegated the power of eminent domain to the ALCAB. Lehigh at 979. The Commonwealth Court rejected this argument, and declared that

[t]he requirement of approval by ALCAB is not a surrender or delegation to ALCAB of the right to condemn nor in any manner an interference with the School District's right to condemn, or the state's duty to provide a reasonable system of education. Id. at 980 (emphasis added).

Through this review of the cases raised by PennDOT in its' Brief, it is clear that

-43-

the Commonwealth Court properly assumed jurisdiction over the dispute in this case.

C. The Desirability of Achieving Early Resolution of Challenges to Agency Determinations That ALCAB Review is Not Legally Required Also Supports the Commonwealth Court's Jurisdiction in This Case

In PennDOT's Brief, the agency boldly asserts that the Commonwealth Court's decision "will actually harm owners of farmland" by eliminating the ability of property owners to raise objections to a Declaration of Taking without having sued first in a Court of Equity. PennDOT's Application for Reconsideration at 7 (Record at 204a). This is simply untrue.

The ALCAB review provisions of the Agricultural Area Security Law constitute both an integral part of the planning and review processes for highway projects as well as limitations on the ability of Commonwealth agencies to condemn farmland in active production. As such, agency failure to correctly determine its responsibilities under the Law during the planning stages prior to the filing of a Declaration of Taking is justiciable by the Commonwealth Court. Due to the ALCAB review provision's impact on the condemnation process itself, once a Declaration of Taking has been filed, the ALCAB review question becomes properly justiciable only through the raising of the issue through preliminary objections. This flexible standard offers maximum coverage to owners of farmland by ensuring that an early challenge to an agency's planning process can be resolved prior to the commitment of resources by the agency and prior to the entry by agency personnel onto active farmland. The standard also offers maximum protection to owners of a farm who may either choose to challenge the failure of the agency pre-condemnation to comply with the Law during the highway

-44-

planning stages or who may choose to wait until a Declaration of Taking is filed.

Amicus Borough of Chambersburg contends that the Commonwealth Court's declaratory judgment will lead to "premature lawsuits", create two opportunities for the landowner to "challenge the declaration of taking", and bring projects to a "standstill". Br. Borough of Chambersburg at 19-20. Amicus' predictions are misleading in several respects. First, a challenge to an agency's final determination that ALCAB review is unnecessary would be ripe for review if the planning process has been completed and a Record of Decision (ROD) has been approved. If those prerequisites are satisfied, as they are in this case, then the suit is not "premature" but has ripened to the point where it can be reviewed.

As for the contention that a landowner would have two opportunities to challenge the condemnation - through a suit in equity first and through preliminary objections second - well established rules of issue preclusion and res judicata would prevent any landowner from asserting the same issue via preliminary objections as he asserted via a challenge to the failure of the agency to seek ALCAB review. This bar is explicitly recognized by the Eminent Domain Code, which declares that a landowner may raise preliminary objections to the Declaration of Taking "unless the same has been previously adjudicated." See 26 P.S. ¤1-406(a).

Thus, the Amicus' prediction, that the Commonwealth Court's ruling will lead to endless delays, is groundless.

-45-

IV. Conclusion

For the above reasons, Lois and Lamar White respectfully request that this Honorable Court affirm the Commonwealth Court's ruling in its entirety, thereby holding that PennDOT must seek the approval of the Agricultural Lands Condemnation Approval Board (ALCAB) prior to filing a Declaration of Taking for the farmland owned by the Whites.

Respectfully Submitted,

_______________________________
Thomas Alan Linzey, Esq.
PA S.Ct. I.D. #76069
Community Environmental Legal Defense Fund (CELDF)
2859 Scotland Road
Shippensburg, Pennsylvania 17257
(717) 709-0457

Counsel for the Appellees

Dated this 24th Day of March, 2000

-46-

Certificate of Service of Process

I, Thomas Alan Linzey, hereby swear and affirm that the foregoing BRIEF OF THE APPELLEES and SUPPLEMENTAL RECORD were served on the following individuals by the following method:

First Class U.S. Mail Pre-Paid

Two copies of the BRIEF and RECORD were served on the following individuals:

Christopher J. Clements, Esq.
Pennsylvania Department of Transportation
Office of Chief Counsel
555 Walnut Street -- 9th Floor
Harrisburg, Pennsylvania 17101-1900

I swear and affirm that the foregoing is true and correct to the best of my knowledge.

___________________________
Thomas Alan Linzey, Esq.
Supreme Court I.D. #76069
Community Environmental Legal Defense Fund (CELDF)
2859 Scotland Road
Shippensburg, Pennsylvania 17257
(717) 709-0457
(717) 709-0263 (fax)

Dated this 24th Day of March, 2000.