IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brandon B. Craig, : : No. 2718 C.D. 2015 Petitioner : Submitted: July 1, 2016

:
v. :

: Pennsylvania Department : of Transportation, :
: Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTE D

MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN FILED: October 14, 2016

Brandon B. Craig petitions for review, pro se , of the March 12, 2015,

final determination of the Secretary of the Pennsylvania Department of Transportation ( Secretary ), which denied Craig’s application for a highway occupancy permit (HOP) . We affirm.

Craig owns property located at 1627 West Market Street, also known as State Route 209 (SR 209), in Pottsville (Property)

. Craig and the adjacent residential
property owners can access SR 209 through use of on

- street parking spaces that are positioned in front of their properties along both sides of SR 209. (Secretary Op. & Order, 12/18/15, at 8.) On September 7, 2013, Craig installed a driveway on the2

P roperty to access SR 209. (Findings of Fact, Nos. 1

- 4.) On September 13, 2013, Craig applied for a HOP with the Department of Transportation’s ( DOT ) Engineering

District 5

- 0 (District). ( Id. , No. 5.) On September 17, 2013, Adam Lorady, Permit Supervisor for Schuylkill County, measured the sight distance at the driveway and

found that it was deficient

. 1 ( Id. , Nos. 6, 11.)

By letter dated Septemb er 20, 2013, District notified Craig of the sight deficiency. ( Id. , No. 12.) The letter further informed Craig that the sight deficiency could be cured if the City of Pottsville (City) removed five parking spaces to the left and three parking spaces to t he right of Craig’s driveway. ( Id. , Nos. 12

- 13.) District advised Craig to obtain written authorization from the City to eliminate the eight parking spaces and, once approved by the City, provide a copy of the ordinance eliminating the spaces. 2 ( Id. , No . 14.)

On October 10, 2013, Craig met with District and the City
, and the City indicated that it would not eliminate the spaces. ( Id. , No. 17.) On November 11, 2013, the City, in a letter to District, confirmed that it would not elimina t e the parking spaces because it would create a hardship on the neighborhood and, thus, denied Craig’s request. ( Id. , No. 18.)

1 The posted speed limit on SR 209 is 35 miles per hour. The grade measurements at Craig’s driveway are negative 3.4 to the left and positive 2.6 to the right. The sight distance is required to be 262 feet to the left and 240 feet to the right. The actual sight distance is 30 feet to the l eft and 75 feet to the right. Thus, the sight distance is deficient by 232 feet to the left and 165 feet to the right. (Findings of Fact, Nos. 7

- 11.)

2 DOT has a policy, which has been in effect for at least 14 years, to defer the removal of parking spa ces to achieve required sight distances for driveways to the local municipality because they have a better understanding of the local community’s needs. ( Findings of Fact , Nos. 15

- 16.)3

Thereafter, District considered alternatives to removing the parking spaces, such as limiting the driveway to right

- in / right

- ou t access and placing mirrors at the driveway . ( Id. , No. 19.) However
, both options were determined to be impermissible due to sight distances and daily traffic. ( Id. )

On January 6, 2014, Craig resubmitted the HOP without making any corrections to the deficient sight distances. ( Id. , No. 20.) On March 4, 2014, District notified Craig by letter of its den ial of the HOP due to insufficient sight distances. ( Id. , No. 21. ) The letter again advised Craig of the minimum sight distances required and explained that the City must eliminate the eight parking spaces for the driveway to be approved. ( Id. , No. 22.) On April 3, 2014, Craig appealed to DOT.

A DOT hearing officer issued a proposed report (Report) that affirmed District’s denial of Craig’s HOP. Craig filed exceptions to the Report with the Secretary. The Secretary adopted the Report, affirmed District’s determination, and ordered Craig to stop using the dr iveway and to restore the driveway to its pre

construction condition. ( Secretary Op. & Ord er , 12/18/15, at 12.) Craig now petitions this court for review. 3

Craig contends that DOT erred in denying his HOP. Craig argues that : (1) the driveway is his on ly access to the highway ; (2) highway access is a

fundamen tal right of property ownership; (3) he should not be burden ed with

3 Our review is limited to determining whether constitutional rights w ere violated, whether the adjudication is in accordance with the law, and whether necessary factual findings are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.4

remov ing the parking spaces as a condition of the HOP ; (4) DOT should have

institute d parking restrictions on the P roperty, as DOT is the ultimate authority and owner of the state route, not the City ; (5) the right to park on the highway should be subordinate to the right of a property owner to access the highway, and denial of all access to preserve parking is not a valid use of DOT ’s police powers; (6) DOT failed to balance the access rights of the property owner and the public interest; (7) DOT has a duty to restrict vehicles from parking on its property and causing line of sight issues, which create an unsafe condition; (8) DOT cannot use a discretionary action, i.e., parking restrictions, to deny all highway access to an abutting property owner

and the action is not discretionary if it must be completed prior to issuance of an HOP; and (9) mandamus can be used to force DOT to develop a solution that provides highway access for Craig and preserves the safety of the traveling public.

DOT’s regulatory authority is derived from s ection 420(b) of the State Highway Law (Law)
, 4 which states that DOT’s “ secretary may issue permits for the opening of streets and driveways onto State highways . . . on terms and conditions established in department regulations.” 36 P.S. §670

- 420(b). Section 420(a) of t he

Law empowers DOT’s secretary “to make reasonable rules and regulations governing the use of all State highways, and . . . may control the flow of traffic thereon.” 36 P.S. §670

- 420(a). Section 420(b)(1) and (2) of the Law provide s :

(1) The secreta ry may delegate permit

- issuing authority to any municipality which agrees to issue permits in compliance with department regulations or municipal ordinances approved by the secretary which shall contain

4 Act of June 1, 1945, P.L. 1242, as amended

.5

standards which are in every particular at least as h igh as those contained in the department regulations.

(2) No person, municipality or municipality authority shall open a driveway onto a State highway or open the surface of or occupy a State highway without a permit.

36 P.S. §670

- 420(b)(1) and (2). D OT may prohibit vehicular access, in appropriate circumstances, under its general police power. Hardee’s Food Systems, Inc. v. Department of Transportation , 434 A.2d 1209, 1211 (Pa. 1981). Such police power may be delegated to municipalities. Id. A mun icipality gets its “ power to regulate and maintain public roads within its boundaries under the general police power ” of

the state. Id. Thus, DOT has the authority to delegate duties to local municipalities regarding regulating parking on a state highway as long as the municipalities comply with DOT’s regulations.

DOT regulat es the location of driveways that are within the right

- of

- way of a state highway “for the purpose of security, economy of maintenance, preservation of proper drainage and safe and reasonable access.” 67 Pa. Code §441.2(a). The regulations require the prope rty owner to secure a permit from DOT prior to constructing a driveway. 67 Pa. Code §441.3. Further, a driveway must “be located, designed, constructed and maintained in such a manner as not to interfere or be inconsistent with the design, maintenance and drainage of the highway” and it must have adequate “[ s ] ight distance [s]

. ” 67 Pa. Code §441.7(a) and (b)(1). Approa ches to driveways must meet the following requirement:

The location and angle of an access driveway approach in relation to the highway intersection shall be such that a vehicle entering or leaving the driveway may do so in6 an orderly and safe manner and with a minimum of interference to highway traffic.

67 Pa. Code §441.7(f)(1). A driveway must meet the minimum sight distance requirements and, if it does not, DO T may “deny access to t he highway.” 67 Pa. Code §441.8 (h)(1) and (3)(vi).

Craig contends t hat he has a constitutionally protected right to access to SR 209 from his property. “The absolute prohibition of driveways to an abutting owner’s land which fronts on a single thoroughfare, and which cannot be reached by any other means , is unlawful and will not be sustained.” Breinig v. County of Allegheny , 2 A.2d 842, 847

- 48 (Pa. 1938) (emphasis added). However, public

authorities have the

right to regulate the manner of the use of driveways by adopting such rules and regulations, in the interest of public safety, as will accord some measure of access and yet permit public travel with a minimum of danger. The rules and regulations must be reasonable, striking a balance between the public and the private interest. The abutter cannot make a business of his right of access in derogation of the rights of the traveling public. He is entitled to make only such use of his right of access as is consonant with traffic conditions and police requirements that are reasonable and uniform.

Id. at 848 (emphasi s added).

Contrary to Craig’s contention, DOT is not prohibiting access to SR 209. Craig currently has access to SR 209 via the on

- street parking spaces located in front of his property along SR 209. (Secretary Op

. & Order, 12/18/15, at 8.)7

“[U]nder i ts general police power, [DOT] may restrict or even prohibit vehicular access to and from abutting property in order to promote and protect the public health, safety and welfare.” Pennsylvania Department of Transportation v. Longo , 510 A.2d 832, 834 (Pa. Cmwlth.)
, aff’d , 578 A.2d 265 (Pa. 1986)

. 5 DOT’s regulations give it “the power to restrict access to and from existing driveways, if such restrictions are necessary for the safety and welfare of the public.” Id. at 835. “Although the restrictions may c ause [Craig] some inconvenience, the record shows that such inconvenience is relatively minor and certainly does not rise to the level that would render [DOT’s] regulatory action unreasonable.” Id.

Here, it is agreed that Craig constructed his driveway without a permit in violation of DOT’s regulations and that the driveway does not have adequate sight distances. DOT exercised its discretion and delegated its authority to the City to determine whether eight parking spaces along the state highwa y should be removed to accommodate Craig’s driveway.

The City, after review
, determined that eliminating the eight parking spaces would cause a hardship on the neighborhood and , thus, denied Craig’s request.

T he City’s decision was discretion ary

. In Love v. Borough of Stroudsburg , 569 A.2d 389, 391 (Pa. Cmwlth. 1990)
, affirmed , 597 A.2d 1137 (Pa. 1991) (citations omitted), this court stated that “‘the state has delegated to municipalities its police power in such matters’ and that municipal regulatio n of parking is valid ‘so long as the

5 A single

-

judge opinion of this court may be cited for its persuasive value, but not as binding precedent. Section 414(b) of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code §69.414(b).8

regulations are not oppressive or unreasonable.’” Here, the City determined that the removal of eight parking spaces would create a hardship on the neighborhood and

that it would not “be reasonable to deny the availab ility of eight parking spaces on the street in exchange for private parking for one property.” (R. Tab 16, Ex. 8.) This

determination is n ei t her oppressive n or unreasonable.

Thus, because the City would not remove the parking spaces, Craig

could not meet the sight distance requirements in DOT’s regulations, which were reasonable and necessary to promote public safety . Therefore, DOT did not err in denying Craig’s HOP. 6 , 7

Accordingly, we affirm.

___________________________________ ROCHELLE S. FRIEDMAN, Senior Judge

6 We note that there is no support for Craig’s contention that DOT denied the HOP to preserve parking in the City.

7 Craig’s contention that mandamus can be used to force DOT to develop a solution that provides highway access for Craig and preserves the safety of the traveling public is in error.

“ ‘ Mandamus does not lie to compel the performance of discretionary acts except where the exercise

or non [

- ] exercise of discretion is arbitrary, fraudulent or based upon a mistaken view of the law. ’ ” Burlington Homes, Inc. v. Kassab , 332 A.2d 575, 577 (Pa. Cmwlth. 1975) ( en banc ) (citation omitted) . As stated above, both DOT ’s and the City’s actions were discretionary. Further, as determined, their actions were not arbitrary, fraudulent
, or based upon a mistaken view of the law. Thus, an action in mandamus can not lie here.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brandon B. Craig, : : No. 2718 C.D. 2015 Petitioner :

:
v. :

: Pennsylvania Department : of Transportation, :
: Respondent :

O R D E R

AND NOW, this 14 th day of October , 201 6
, we hereby affirm the March 12, 2015, final determination of the Secretary of the Pennsylvania Depa rtment of Transportation.

___________________________________ ROCHELLE S. FRIEDMAN, Senior Judge