Request for private road denied by judge

Latest development in protracted case

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An Allegheny County landowner has failed to show that the public at large is the "primary and paramount beneficiary" of his request to build a private road on his neighbor's land that leads to his two landlocked parcels, a judge has ruled.

Allegheny County Court of Common Pleas Judge Eugene E. Fike II's ruling is the most recent development in a protracted case that has already heard from a sharply divided state Supreme Court, which held in 2010 that "the constitutions of the United States and Pennsylvania mandate that private property can only be taken to serve a public purpose."

The case -- In the Matter of Opening a Private Road for the Benefit of O'Reilly -- came as a petition under a 177-year-old piece of legislation known as the Private Road Act, which allows owners of landlocked property to seek a judicial remedy to place a private road between their property and another roadway that leads to, or is part of, the public road system.

In this case, the petitioner, Timothy O'Reilly, wanted to open a private road between his landlocked parcels in Allegheny County and the nearest public road. The proposed road would cross the property of the "Hickory on the Green Homeowners Association," near Bridgeville, and its 124 member owners, as well as the property of Mark Polk.

Mr. O'Reilly's land was cut off from road access long before he owned it -- that happened when the government condemned part of it in 1963 to build Interstate 79, which is east of his property.

When the Supreme Court decided the case, the majority sent it back down for an evidentiary hearing as to whether the public would be the "primary and paramount beneficiary" of a roadway being built.

Attorneys representing the respondent homeowners association and property owners said the high court opened the Private Road Act up to constitutional attacks with its ruling.

And in this case, following Judge Fike's ruling, the attack worked, as the evidence did not support a finding that the public would be the primary and paramount beneficiary of the proposed opening of a road.

However, the petitioner's attorney said a freshly minted Commonwealth Court opinion filed 10 days after the instant case, and dealing with the same issue, would be grounds for another trip up the appellate ladder for Mr. O'Reilly.

Dickie McCamey & Chilcote attorney William P. Bresnahan II said Judge Fike did not have the benefit of Raap v. Waltz when he issued the decision in O'Reilly. In Raap, a three-judge panel ruled the public was the primary beneficiary of a proposed road filed by property owners of a piece of land that became landlocked after the Pennsylvania Department of Transportation condemned a portion of it as part of a construction project before the couple had purchased the land.

Led by Judge Mary Hannah Leavitt, the Raap court reversed a Lycoming County judge who decided the case based on the Supreme Court's decision in O'Reilly.

Judge Leavitt noted that the Supreme Court in the O'Reilly case did not hold the Private Road Act to be unconstitutional and it did not consider relevant amendments to the Eminent Domain Code because they were enacted after suit was filed. She also noted another Supreme Court decision in which the high court ruled to open a landlocked property via the Private Road Act.

"We hold that the trial court erred in holding that the Raaps could not invoke the Private Road Act to open a roadway to their landlocked property. ... Permitting the owner of landlocked property in this situation to open a roadway ensures that the government can exercise its power of eminent domain for important public works and infrastructure projects without depriving the property owner of access to his land," she wrote.

Mr. Bresnahan noted the public benefits from property taxes that grow "immensely" when a large property is accessible by road. The ability to use the Private Road Act, Mr. Bresnahan added, affects a lot of property owners in Pennsylvania's smaller counties.

"They have to be able to get these properties to the point where they're usable," he said.

Kevin P. Allen of Eckert Seamans Cherin & Mellott represented the respondent homeowners association and residents.

"This decision protects private property owners from being forced to give up their private property, not for the benefit of the public at large, but for the benefit of another private person or entity," Mr. Allen said in a statement following the decision.

legalnews

Ben Present: bpresent@alm.com or 215-557-2315. To read more articles like this, visit www.thelegalintelligencer.com


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