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 REPORTED

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 the
2

Property 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 September 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 the 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 eliminate 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 

left 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 spaces 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-out 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 denial 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 driveway and to restore the driveway to its preconstruction condition. (Secretary Op. & Order, 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 only access to the highway; (2) highway access is a 

fundamental right of property ownership; (3) he should not be burdened with 

 

3 Our review is limited to determining whether constitutional rights were 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

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

instituted parking restrictions on the Property, 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 section 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 the 

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 provides: 

(1) The secretary 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 high 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). DOT 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 municipality 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 regulates 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 property 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). 

Approaches 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 in 
6

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, DOT may “deny access to the highway.” 67 Pa. 

Code §441.8(h)(1) and (3)(vi).

Craig contends that 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 (emphasis 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 its 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 cause [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 highway 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. 

The City’s decision was discretionary. 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 regulation 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 availability of eight parking spaces on the 

street in exchange for private parking for one property.” (R. Tab 16, Ex. 8.) This 

determination is neither oppressive nor 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 cannot 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 14th day of October, 2016, we hereby affirm the March 

12, 2015, final determination of the Secretary of the Pennsylvania Department of 

Transportation.

___________________________________

ROCHELLE S. FRIEDMAN, Senior Judge