Kee v. Pennsylvania Turnpike Commission

KELLEY, Judge,

dissenting.

I respectfully dissent.

I believe that the legislature intended, through the Commission’s enabling legislation and other statutory enactments, for the Commission’s authority to be pre-eminent over that of municipalities such as the township in this case.

The Commission was created in 1937 by the Act of May 21,1937, P.L. 774, as amended, 36 P.S. §§ 652a - 652q, commonly referred to as the Pennsylvania Turnpike Commission Act. Therein, the legislature created the Commission as an instrumentality of the Commonwealth and “the exercise by the commission of the powers conferred by this act in the construction, operation and maintenance of the turnpike shall be deemed and held to be an essential governmental function of the Commonwealth.” Section 4 of the Pennsylvania Turnpike Commission Act, 36 P.S. § 652d. One of the powers conferred upon the Commission was the power to acquire real property deemed necessary or convenient for the construction or the efficient operation of the turnpike. Sections 5 and 6 of the Pennsylvania Turnpike Commission Act, 36 P.S. §§ 652e-652f (emphasis added). Moreover, when acquiring real property from a municipality, which may be necessary or convenient to the effectuation of the authorized purposes of the Commission, including real property already devoted to public use, the legislature granted the Commission the power to acquire such property without the necessity for any advertisement, order of court or other action, or formality other than the regular and formal action of the authorities concerned. Section 6 of the Pennsylvania Turnpike Commission Act, 36 P.S. § 652f.

In 1978, the legislature enacted the Act of November 26, 1978, P.L. 1411. Section 1 of this act provides that “[t]he health, safety and welfare of the citizens of Pennsylvania would be promoted by the Pennsylvania Turnpike Commission undertaking projects from time to time designed to improve the safety of the Pennsylvania Turnpike System and provide better and more efficient service for its users.” 36 P.S. § 652t.

More recently in 1985, the legislature enacted the Turnpike Organization, Extension and Toll Road Conversion Act (Turnpike Act), Act of September 30, 1985, P.L. 240, as amended, 36 P.S. §§ 651.1-651.20.1 In section 6 of the Turnpike Act, the legislature again expressly states that “[t]he exercise by the commission of the powers conferred by this act in the construction, operation and maintenance of the turnpikes and in effecting toll road conversions shall be deemed and held to be an essential governmental function of the Commonwealth.” 36 P.S. § 651.6. The Turnpike Act also confers upon the Commission all the powers and duties prescribed by the Pennsylvania Turnpike Commission Act.

Based on the foregoing, I believe that it is clear, as a matter of law, that the legislature intended to confer upon the Commission the authority to construct and improve the turnpike for, among other things, safety concerns without the necessity of complying with local zoning laws. To conclude otherwise would stifle the Commission’s obligations and duties under the law to facilitate vehicular traffic within and across the Commonwealth by providing for the construction, reconstruction, improvement, operation and maintenance of the turnpike.

I recognize, as pointed out by the majority herein, that the zoning laws are founded *1129upon the constitutional principles of the police powers of government to protect public health, safety and general welfare. Forks Township Board of Supervisors v. George Calantoni & Sons, 6 Pa.Cmwlth. 521, 297 A.2d 164 (Pa.Cmwlth.1972). I also recognize that the Commissioner’s enabling legislation does not expressly confer upon it the power to disregard local land use regulation.2 However, the Commission’s enabling legislation and subsequent legislation charges the Commission with the duty to construct, reconstruct, improve and maintain the turnpike. In order to do so, the Commission must be afforded the ability to proceed without regard to local zoning laws. Otherwise, the Commission’s power would be subrogated to the laws of each municipality along the length of the turnpike resulting in the Commission having to carry out its essential governmental function in piece-meal fashion. This would result in the local zoning laws being pre-eminent over the Commission’s powers as set forth in the law.

Accordingly, I would grant the Commission’s motion for partial summary judgment.

. The Turnpike Act repealed entirely certain sections of the Pennsylvania Turnpike Commission Act and repealed other sections, such as section 4, only insofar as the sections are inconsistent with the Turnpike Act.

. I note that the Commission’s enabling legislation and subsequent legislation also do not specifically state that the Commission is subject to local zoning or land use regulation.