           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
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.)


                                                    2
              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 pre-
construction 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.


                                                 3
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.


                                                 4
            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


                                         5
                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.)

                                           6
              “[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).


                                              7
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.


                                                 8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brandon B. Craig,                      :
                                       : No. 2718 C.D. 2015
                         Petitioner    :
                                       :
                    v.                 :
                                       :
Pennsylvania Department                :
of Transportation,                     :
                                       :
                         Respondent    :



                                      ORDER


            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
