A state court has affirmed the decision of a Carbon County judge in an eminent domain declaration dispute over the Route 443 widening project in Lehighton.

In a 25-page opinion, the Commonwealth Court rejected the appeal of the Bennett Family Properties objection to the taking of property it owns along the Route 443 project.

On Jan. 21, 2020, Judge Joseph J. Matika, after conducting a nonjury trial in the matter, ruled the declaration of taking by the Pennsylvania Department of Transportation was legal.

In its opinion, the state court says BFP presented two issues for the court’s review: “(1) whether the trial court erred and abused its discretion by prohibiting testimony supporting BFP’s claims that PennDOT failed to conduct a suitable investigation and reach an intelligent, informed decision before it filed the Declaration; and (2) whether the trial court incorrectly interpreted PennDOT’s duties under the Eminent Domain Code and case law, where uncontroverted evidence supports the trial court’s assertion that PennDOT failed to satisfy those duties.”

After reviewing the testimony given at the trial before Matika and the case law to apply to the appeal, the state court wrote:

“BFP did not provide any statute or case law to the trial court or this court to support its position that PennDOT must, as part of its ‘suitable investigation,’ and its resulting ‘intelligent, informed judgment,’ consider the BFP Property’s highest and best use or the impact on the BFP Property and BFP’s intended use, and ‘seek a reasonable alternative to the taking of the BFP Property.’”

The court continued, “This court found no statute or case law. Those considerations are not part of a condemner’s aforementioned duties and, therefore, were not at issue in the proceeding below. Accordingly, the trial court properly precluded Bennett’s and (Bennett’s expert witness Lisa) Foreback’s testimony regarding the BFP Property’s highest and best use during the proceeding’s preliminary objection stage.”

The state court also rejected BFP’s argument that Matika incorrectly interpreted PennDOT’s duties under the code and case law. After reviewing the argument and case law presented to support it, the state court wrote:

“The crux of Bennett’s argument appears to be that PennDOT did not give adequate consideration to ‘his alternate proposal’ and, therefore, PennDOT did not conduct a suitable investigation leading to an intelligent and informed decision.”

The court went on to say, “Regardless, as explained, BFP’s position is not the legal standard. There is no requirement that a condemner conduct a suitable investigation ‘specific to an alternative condemnee-required proposal.’ Rather, the requirement that a condemner conduct a suitable investigation applies to the project itself. While that may include consideration of an alternate proposal, nothing mandates the level of consideration that must be given thereto.”

Adding, “A condemner’s plan must be for a ‘proper purpose,’ and ‘evidence of a well-developed plan of proper scope is significant proof that an authorized purpose truly motivates a taking.’ But a condemner ‘is not required to follow any set criteria in choosing a … site. All that is required is that an investigation be conducted so that the decision to condemn is an informed judgment.

In reaching its decision, the trial court properly applied the law and concluded that PennDOT had conducted a suitable investigation and reached an intelligent, informed judgment.”

Judge Anne E. Covey signed the opinion.

BFP can appeal the decision.