concurring and dissenting.
I concur in the majority’s disposition of the preliminary objections filed by the Pennsylvania Department of Transportation (PennDOT) in response to Lamar and Lois White’s complaint. I respectfully dissent, however, with respect to the majority’s disposition of the White’s motion for summary relief.
The majority interprets Section 306 of the Administrative Code of 19291 as requiring PennDOT to seek approval by the Agricultural Lands Condemnation Approval Board (ALCAB) before PennDOT can file a declaration of taking. I disagree with this interpretation.
Section 306(d)(1) provides that the AL-CAB shall have jurisdiction over condemnation for “[hjighway purposes, but not including activities relating to existing highways such as, but not limited to, widening roadways, the elimination of curbs or reconstruction.” The majority states that Section 306(d)(1) creates an exception for a subset of “activities” and not all activities relating to existing highways. While I agree that the language of Section 306(d)(1) creates an exception for activities relating to existing highways, I do not agree that the language which states “such as, but not limited to widening roadways, the elimination of curbs reconstruction” creates an exception for a subset of “activities” that only take place within the existing roadbed. To the contrary, I believe the language of the statute clearly contemplates situations where PennDOT is seeking to construct an interchange by virtue of the fact that the language states “such as, but not limited to widening roadways, the elimination of curbs or reconstruction.”
The fact that the language of the statute states “such as, but not limited to” indicates that the ALCAB does not have jurisdiction over any activity relating to an existing highway. I believe that the General Assembly, when it enacted Section 306(d)(1), intended only to give examples of the types of activities that the ALCAB did not have jurisdiction over with respect to activities relating to existing highways. I do not believe that the General Assembly intended to limit the exception to a “subset” of activities that take place within the existing roadbed. If the General Assembly had so intended, I believe that it would have included plain language to that effect. Moreover, even if the language of the statute does create an exception for a “subset” of activities, I believe that the construction of an interchange is encompassed within the term “reconstruction.”
Accordingly, I would deny the Whites’ motion for summary relief and hold that PennDOT is not required to obtain AL-CAB approval for all or part of the proposed interchange project before it can file a declaration of taking.
. Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 106.