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Turnpike Slip Ramp


Charlestown Township Petition
For A Declaratory Judgment Regarding
The Turnpike Slip Ramp



IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James E. McErlane, Esquire
Attorney 1. D. #04895
LAMB, WINDLE & McERLANE, P.C.
24 East Market Street, P.O. Box 565
West Chester, PA 19381-0565                        Counsel to Charlestown Township
Telephone: (610) 430-8000

CHARLESTOWN TOWNSHIP
                        Petitioner

                   v.                    NO. M.D.                  1999

PENNSYLVANIA TURNPIKE
COMMISSION
                        Respondent

PETITION FOR-REVIEW IN THE NATURE OF A COMPLAINT FOR
DECLARATORY JUDGMENT

Petitioner, Charlestown Township, by its attorneys, Lamb, Windle & McErlane, P.C., brings this action for declaratory judgment pursuant to 42 Pa.C.S. §7531 et agq. for the purpose of determining a question of actual controversy between the parties, as follows:

THE PARTIES

1. Charlestown Township is a Second Class Township, as that term is defined by the Pennsylvania Second Class Township Code, 53 P.S. §65101 et seq., with its principal office at 4030 Whitehorse Road, P.O. Box 507, Devault, PA 19432. Charlestown Township is a body corporate and politic, and a political subdivision of the Commonwealth of Pennsylvania.

2. The Pennsylvania Turnpike Commission is an agency of the Commonwealth of Pennsylvania with offices at the Turnpike Commission Building, Harrisburg Interchange, Harrisburg, PA 17106-7676.

JURISDICTION

3. This Court has original jurisdiction of this case under 42 Pa.C.S. §761(a)(1) because this is an action brought against an agency of the Commonwealth of Pennsylvania.

4. This is an action for declaratory judgment pursuant to 42 Pa.C.S.A. §7531 et seq. for the purpose of determining a question of actual controversy between the parties, whether the Pennsylvania Turnpike Commission can construct, install, acquire real estate whether or not by eminent domain, implement and operate a slip ramp interchange at a location which is in and/or immediately and adversely impacts Charlestown Township (collectively the "Interchange Project"), without the enactment of appropriate legislation specifically authorizing the Interchange Project.

5. The term "slip ramp" has been used by the Pennsylvania Turnpike Commission to describe a single or double lane, either as an on ramp or off ramp, with equipment by which turnpike tolls can be charged electronically.

6. Representatives of the Pennsylvania Turnpike Commission have displayed plans for three separate slip ramp proposals, all of which connect with Pennsylvania Route 29, which crosses under the Pennsylvania Turnpike in Charlestown Township all of which sites are in Charlestown Township, East Whiteland Township, and/or Tredyffrin Township, all of which meet near the point under which Route 29 crosses under the Pennsylvania Turnpike. The Pennsylvania Turnpike Commission has stated that it intends to proceed with the Interchange Project, with only the specific site as yet left open.

THE FACTS

7. Representatives of the Pennsylvania Turnpike Commission, speaking at a presentation to the public arranged by the Pennsylvania Turnpike Commission, indicated that the Pennsylvania Turnpike Commission did not believe that it required Legislative approval for the Interchange Project.

8. Charlestown Township believes and therefore avers that the Pennsylvania Turnpike Commission does not have the power to construction the Interchange Project without approval from the Legislature of the Commonwealth of Pennsylvania.

9. Implementation of the Interchange Project would create immediate and irreparable harm upon the citizens and residents of Charlestown Township and surrounding communities, would adversely affect the way of life for an entire community, would violate the Comprehensive Plan and Zoning Ordinance of Charlestown Township, would violate "Landscapes", a comprehensive plan adopted by the Board of County Commissioners of Chester County and applicable to all of Chester County, and would be directly contradictory to a rational planning process, such as is imposed on Charlestown Township by the Municipalities Planning Code, 53 P.S. §10101 et seq., and other applicable laws.

10. Implementation of the Interchange Project would cause huge volumes of traffic to go upon State and Township roads such as PA Route 29, Charlestown Road and Whitehorse Road, among others, all of which are winding two lane roads which already bear more traffic than can be safely provided on such roads.

11. There is no local road infrastructure in Charlestown Township which will support the traffic which would be generated by the Interchange Project.

12. The Pennsylvania Turnpike Commission was created by the Act of May 21, 1937, P.L. 774, No. 211, of which Section 1 provides at 36 P.S. §652a.

In order to facilitate vehicular traffic between the eastern and western sections of the Commonwealth, the Pennsylvania turnpike Commission hereinafter created is hereby authorized and empowered to construct, operate and maintain a turnpike at such location as shall be approved by the Department of Highways, from a point at or near Middlesex in Cumberland County to a point at or near Irwin in Westmoreland County, together with connecting tunnels and bridges, and to issue turnpike revenue bonds of the Commonwealth, payable solely from tolls, to pay the cost of such construction.

13. From its very inception, the scope of authority of the Pennsylvania Turnpike Commission has been limited by its enabling legislation and subsequent acts, re-enactments, and other legislation approved by the Legislature.

14. Act 211 of 1937 authorized construction of a turnpike from a point near Middlesex in Cumberland County to a point near Irwin in Westmoreland County. Various additions to the turnpike have been approved by successive legislation. Had it not been but for such successive legislation, the Turnpike would never have been constructed to its current length, width, interchange system, and ancillary functions.

15. The extent of legislative control, and the need for legislative authority, is typified by the following legislative acts, which do not purport to be a comprehensive list of all legislation affecting the turnpike or authorizing expansion thereof.

a. Act 73 of 1957 said "The Pennsylvania Turnpike Commission shall cause the interior of each tunnel on the Pennsylvania Turnpike to be painted. . ." 36 P.S. §652r.

b. Act 74 of 1957 said "The Pennsylvania Turnpike Commission shall erect, and therefore maintain and repair ... medial guards or barriers. . ." 36 P.S. §652s. In the Act of September 15, 1961, the Legislature directed the Pennsylvania Turnpike Commission to "erect and thereafter maintain and repair along not less than one hundred fifty miles of the Pennsylvania Turnpike medial guards or barriers. . ." 36 P.S. §652v, and further, to "erect and thereafter 'maintain and repair not less than twenty five miles of medial guards or barriers each year until such time as the minimum length of one hundred fifty miles of the turnpike is so equipped." 36 P.S. §652w.

C. If the Turnpike Commission required Legislative approval for lighting tunnels and construction of medial barriers, it requires Legislative approval for the Interchange Project.

16. Typical among the enactments authorizing projects of the Pennsylvania Turnpike Commission is Act 331 of 1978, codified at 36 P.S. §652t and u (both of which are from §1 of the Act and represent sections of §1), which provides "The Pennsylvania Turnpike Commission is hereby authorized and empowered at any time and from time to time, to construct, improve and reconstruct, as projects. . as hereinafter described, (various projects) including toll plazas, interchanges, bridges, on the following sections of the Pennsylvania Turnpike: . . . (3) between the Carlisle and Valley Forge Interchanges (interchanges commonly referred to as the Philadelphia extension)." Attached hereto as Exhibit "A" is a copy of Act 331 of 1978 in its entirety. Note that language in brackets is deleted and language in italics is added.

17. All improvements authorized and empowered by Act 331 of 1978 have been completed.

18. Act 331 of 1978 also approved bond issues for the Pennsylvania Turnpike Commission. The Legislature has reserved to itself the right to approve bond issues by the Pennsylvania Turnpike Commission. Typical of the Legislature's reaction to proposed financings by the Pennsylvania Turnpike Commission, is this statement taken from the Pennsylvania Legislative Journal - Senate, as of June 13, 1978, at page 611 ...

In the times that the Turnpike Commission has come to this Body and asked concurrence and approval of their bond issues, we have never denied a bona fide request, I say this, Mr. President, let us remain the watchdogs of the people and do not give a commission of nameless, faceless people, who may not be there tomorrow and who are not responsive to the electorate, the power to mortgage Pennsylvania's future.

19. By contrast, Charlestown Township, as a Second Class Township, has the authority to issue bonds and incur indebtedness without approval of the Legislature, so long as the municipality complies with the limits set forth in the Local Government Unit Debt Act, 53 Pa.C.S.A. §8001.

20. Act 109 of 1992 is further example of the Legislative control over the Pennsylvania Turnpike Commission. 75 Pa.C.S.A. §8901-89-16.

21. Section 8911 of Act 109 of 1992 says the Pennsylvania Turnpike Commission "is hereby authorized and empowered to construct, operate and maintain turnpike extensions and turnpike improvements at such specific locations ... as shall be deemed feasible and approved by the Commission... as follows. . .(2) Construct turnpike interchange with Interstate Route 95 in Bucks County; (3) Construct turnpike interchange with Interstate Route 476 in Montgomery County; (4) Construct turnpike interchange with Keyser Avenue in Lackawanna County;. etc. Attached as Exhibit "B" hereto is a copy of the text of Act 109 of 1992, which contains specific Legislative approvals for a number of other Turnpike Interchanges and related projects.

22. All improvements authorized and empowered by Act 109 of 1992 have been completed.

23. Act 331 of 1978 and Act 109 of 1992 confirm that legislative approval is required for the Interchange Project.

24. If the Legislature did not believe that the Pennsylvania Turnpike Commission required the adoption of specific laws to authorize specific projects then the Legislature would not have adopted the legislation cited herein and other legislation also applicable to projects of the Pennsylvania Turnpike Commission.

25. Entry of a declaratory judgment stating that the Interchange Project must be specifically approved by the Legislature and adopted as a law of this Commonwealth satisfies the purposes of the declaratory judgment acts by, among other things, resolving uncertainty and security with respect to the rights of the Pennsylvania Turnpike Commission and legal relations between Charlestown Township and the Pennsylvania Turnpike Commission; will promptly determine outstanding legal issues which can be determined to better advantage now than at some future time and future litigation; and a judicial declaration at this time may prevent a situation where proposed funds are expended unnecessarily and before harm actually occurs.

WHEREFORE, Charlestown Township respectfully requests this Honorable Court to enter a declaratory judgment, declaring that the Interchange Project must be approved by the Legislature and adopted as a law of the Commonwealth prior to the implementation thereof by the Pennsylvania Turnpike Commission and further, grant such other relief as this Honorable Court may deem appropriate.

LAMB, WINDLE & McERLANE, P.C.

 

By:

_____________________
      James E. McErlane



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