Commonwealth v. Guyette

Dissenting Opinion by Senior Judge Kalish:

I respectfully dissent.

A governmental agency in implementing its highway program may use, in the exercise of its police power, such devices as medial barriers and curbing. However, the exercise of the police power, when it reaches a certain magnitude, becomes an exercise of the power of eminent domain and the agency must offer compensation in order to sustain that exercise of police power.

Our legislature recognized this by providing in section 612 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-612, that “all condemnors . . . shall be liable for damages to property abutting the area of an improve*407ment resulting from change of grade of a road or highway, permanent interference with access thereto, or injury to surface support, whether or not any property is taken.” (Emphasis added.) Damages must result from interference with access. Mere inconvenience to access from the use of barriers, medial strips, or curbing, which results in a change of the traffic pattern, is merely evidentiary on this issue.

Access is defined as the right of reasonable ingress and egress. Breinig v. Allegheny County, 332 Pa. 474, 2 A. 2d 842 (1938). This right of a reasonable ingress and egress is a property right which cannot be impaired or taken away without compensation. Hession Condemnation Case, 430 Pa. 273, 242 A.2d 432 (1968). However, this property right does not include a right of the landowner in the continuation or maintenance of traffic flow past his property. Wolf v. Department of Highways, 422 Pa. 34, 220 A.2d 868 (1966).

An access is not a reasonable one if it is unsuited for its present use and for the highest and best use of its property. Access is unreasonable where entrance and deliveries cannot be made, except under difficult conditions and at considerable expense. There is a direct relationship between suitable access and highest and best use. Priestly v. State, 23 NY2d 152, 242 NE2d 827, 295 NYS2d 659 (1968).

Routes may also be so circuitous as to represent an unreasonable and permanent interference with access. Commerce Land Corp. v. Pennsylvania Department of Transportation, 25 Pa. Commonwealth Ct. 561, 361 A.2d 469 (1976). In Tracy v. Pennsylvania Department of Transportation, 43 Pa. Commonwealth Ct. 218, 402 A.2d 286 (1979), the property owner operated a restaurant and motel which was frequented by tractor-trailer trucks and drivers, and the barriers erected resulted in an unsafe condition. In McCrady Case, 399 Pa. 586, 160 *408A.2d 715 (1960), the property involved was a gas station and restaurant. Access was so constructed that ingress and egress to and from the gas station and restaurant were located so that it was very difficult and in some instances impossible to reach the property. Large tractor-trailers, which represented a considerable volume of the owners business, found it impossible to get in.

In the instant case, one owner is in the medical supply business and the other sells communication services and equipment. The only substantial detour resulting from the medial barrier affects northbound vehicles which must travel circuitously about 7.45 miles to enter the property. While these suppliers to the property owner may be inconvenienced, it would be unreasonable to infer substantial infringement or interference with access or to infer that access is unsafe or impractical.