OFFICIAL OPINION No. 14

OFFICIAL OPINION No. 14 Condemnation-Department of Transportation-Powers under Project 70 Land Acquisition and Borrowing Act. 1. The Project 70 Act, 72 P. S. § 3946.20 directs the Commonwealth to both acquire and assist local governments to acquire lands for recreation, con- servation and historical purposes and to protect such lands against future uses inconsistent with this purpose. 2. Section 20(b) of the Act indicates that the only exception to these purposes involves exploitation of natural resources or certain public utility uses, and then only under reasonable regulations consistent with the primary use of such lands for recreation, conservation, and historical purposes. 3. The exceptions, by excluding use for public highways, clearly demonstrates that land is not to be taken for that purpose without the approval of the General Assembly. 4. It fa a necessary implication that the General Assembly intended that this restriction include a ban against acquisition of Project 70 Act lands through condemnation by eminent domain. 5. Accordingly, the Department of Transportation is prohibited from acquiring by exercise of the power of eminent domain any lands acquired through the use of Project 70 Act funds. The Honorable Maurice K. Goddard Acting Secretary Department of Environmental Resources Room 518, South Office Building Harrisburg, Pennsylvania Dear Dr. Goddard: Harrisburg, Pa., March 22, 1971 You have requested our advice as to whether or not the Department of Transportation may condemn lands acquired under the authority granted by the Act of June 22, 1964, Special Session, P. L. 131, No. 8, § 20, 72 P. S. § 3946.20, commonly called the Project 70 Land Acquisition and Borrowing Act, after referred to as "Project 70 Act." Specifically, you have requested an interpretation of Section 20(d) of the Project 70 Act as it affects the Department of Transportation's ,h, m1 r!IIJIDI boriij I, No. ~ Act" io(ol 1tion'1 OPINIONS OF THE ATTORNEY GENERAL 27 present intention of taking a portion of that land known as "Duff Park" and belonging to the Franklin Township Park Commission, Westmore- land County. The facts are briefly that Duff Park was acquired by the Franklin Township Board of Supervisors at a cost of approximately $50,000. Of that amount, $22,500 was paid by the Department of Community Affairs, pursuant to Sections 16(a)(4) and 17(d) of the Project 70 Act. Section 20 (b) reads as follows: "No lands acquired with funds made available under this act shall be disposed of or used for purposes other than those prescribed in this act without the express approval of the General Assembly: Provided, That the Commonwealth or a political subdivision, as the owner of such lands, may issue permits, licenses or leases for the exploration, development, storage and removal of oil, gas or other minerals, or for the installation and use of water, gas, electric, telephone, tele- graph, oil or oil products lines, under reasonable regulations prescribed by such owner consistent with the primary use of such lands for 'recreation, conservation and historical purposes'." The Project 70 Act directs the Commonwealth to both acquire and assist local governments to acquire lands for recreation, conservation and historical purposes and to protect such lands against future uses inconsistent with this purpose. Section 2( 4) of the Project 70 Act, 72 P. S. § 3946.2( 4) provides as follows: "The rapid growth of population in Pennsylvania urban and suburban areas requires the acquisition of land for recrea- tion, conservation and historical purposes before such lands are lost forever to urban development or become prohibitively expensive." Section 20 (b), set forth in full above, indicates that the only excep- tion to these purposes contemplated by the legislature involved exploita- tion of the natural resources or certain public utility uses, provided that such use was "under reasonable regulations . . . consistent with the primary use of such lands for 'recreation, conservation and histori- cal purposes'." The exceptions, by excluding use for public highways, clearly demonstrates that land is not to be taken for that purpose with- out the approval of the General Assembly. 28 OPINIONS OF THE ATTORNEY GENERAL Not only is this made clear in Section 20 (b) but Section 20 (f) of the Project 70 Act specifically contemplates that acquisition of land for the purposes set forth in the Act may, in fact, eliminate or substan- tially alter any public road or highway within such land. The section in relevant part is as follows: "Whenever any acquisition of land shall cause a dead-end public road or highway or whenever a public road or highway is cut off or terminated, suitable substitute public roads and highways shall be provided if the need therefor is determined by the governing body of the city, borough, town or township where such dead-end or cut off occurs ... " The General Assembly intended to give the acquisition of park land priority over construction of highways. It is the necessary implication that the General Assembly intended that this restriction include a ban against acquisition of Project 70 Act lands through condemnation by eminent domain. Such a restriction on the exercise of the right of eminent domain by the Commonwealth is valid. Where the intention to do so is clearly set forth, the legislature may deprive the Commonwealth of the power to exercise the right of eminent domain for specific purposes. Interstate Cemetery Company Appeal, 422 Pa. 594, 222 A. 2d 906 (1966). Accordingly, we are of the opinion, and so advise you, that the Department of Transportation is prohibited by Section 20 of the Project 70 Act from acquiring by exercise of the power of eminent domain any lands acquired through the use of Project 70 Act funds. Very truly yours, J. SHANE CREAMER, Attorney General.