Opinion
No. 975 C.D. 2012
03-15-2013
In re: Tax Parcel 27-309-216 Scott and Sandra Raap, Appellants v. Stephen and Kathy Waltz
BEFORE: HONORABLE , Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION
BY JUDGE LEAVITT
Scott and Sandra Raap appeal an order of the Court of Common Pleas of Lycoming County (trial court) granting summary judgment in favor of Stephen and Kathy Waltz in the Raaps' action seeking appointment of a board of viewers pursuant to the law commonly known as the Private Road Act. In doing so, the trial court held that the Raaps could not open a private roadway to access their landlocked property because the Raaps, and not the general public, would be the primary beneficiaries. Because we conclude that the public will be the primary and paramount beneficiary of the private roadway proposed by the Raaps, we reverse and remand for further proceedings on the Raaps' request to open access to their landlocked property.
Act of June 13, 1836, P.L. 551, as amended, 36 P.S. §§ 2731-2891.
In 1992, the Commonwealth of Pennsylvania, Department of Transportation condemned a portion of a tract of land owned by Terry and Sharon Berfield as part of a project to relocate part of Route 15 in Lycoming County. As a result of the condemnation, part of the Berfields' tract became landlocked. In November 1995, the Raaps purchased approximately 51 acres of land from the Berfields, 14 acres of which had been landlocked by the 1992 condemnation. The Raaps' landlocked property can be accessed only by crossing the Waltzes' adjacent property.
On June 15, 2011, the Raaps filed a civil action under the Private Road Act requesting the appointment of a board of viewers to open a private road across the Waltzes' property to connect the Raaps' parcel to the nearest public road. The Waltzes filed an answer with new matter seeking dismissal of the complaint. In depositions the Raaps stated that they sought to cross the Waltzes' land to be able to access their land, as opposed to effecting a particular public use, such as construction of a school. On December 12, 2011, the Waltzes filed a motion for summary judgment.
On March 19, 2012, after hearing oral arguments, the trial court granted summary judgment in favor of the Waltzes. In doing so, the trial court relied upon our Pennsylvania Supreme Court's holding in In the Matter of: Opening a Private Road for the Benefit of Timothy P. O'Reilly, 607 Pa. 280, 5 A.3d 246 (2010), that the public must be the primary and paramount beneficiary in a Private Road Act proceeding. The trial court concluded that the Raaps were not entitled to relief under the Private Road Act because the roadway they sought would benefit them, not the public. The trial court also rejected the Raaps' argument that Section 204 of the Eminent Domain Code, 26 Pa. C.S. §204, supported a public purpose finding for their private road because their land only became landlocked by the Commonwealth's new road. The trial court concluded that the Code does not apply directly to a Private Road Act matter. Further, the Raaps purchased their property after the Commonwealth's exercise of eminent domain caused the property to become landlocked. The present appeal followed.
On appeal, the Raaps argue that the trial court erred. The Raaps contend that, because the public benefitted from the Commonwealth's exercise of eminent domain that caused their property to become landlocked in the first place, the public is also the primary and paramount beneficiary of the private road that will unlock their property. The Raaps further argue that it is irrelevant that the land was landlocked when they purchased it. We agree.
Our standard of review of the trial court's grant of summary judgment is de novo and our scope of review is plenary. Pyeritz v. Commonwealth, ____ Pa. ____, ____, 32 A.3d 687, 692 (2011). We will only overturn a trial court's entry of summary judgment if there has been an error of law or abuse of discretion. Id. Summary judgment is appropriate only if "there is no genuine issue of any material fact as to a necessary element of the cause of action." Id. (citing Pa. R.C.P. No. 1035.2(1)). Therefore, judgment may be entered only when, after examining the record in the light most favorable to the non-moving party and resolving all doubts as to the existence of a genuine issue of material fact against the moving party, the moving party is clearly entitled to judgment as a matter of law. Id.
Section 11 of the Private Road Act provides that a landowner may petition the court for the appointment of a board of viewers to evaluate a proposed private road that will connect a landowner's property to a highway. 36 P.S. § 2731. Section 204 of the Eminent Domain Code, 26 Pa. C.S. §204, which was enacted as part of the 2006 amendments to the Code, generally prohibits a condemnor from taking private property for use by a private enterprise. One exception to this prohibition is the taking of property by eminent domain if doing so will provide access to a public thoroughfare for a property that has been landlocked as a result of the use of eminent domain. 26 Pa C.S. §204(b)(9).
Section 11 of the Private Road Act states, in relevant part:
The several courts of quarter sessions shall, in open court as aforesaid, upon the petition of one or more persons ... for a road from their respective lands or leaseholds to a highway or place of necessary public resort, or to any private way leading to a highway. direct a view to be had of the place where such road is requested, and a report thereof to be made, in the same manner as is directed by [the Private Road Act].36 P.S. §2731 (emphasis added).
Section 204 of the Eminent Domain Code states, in pertinent part:
(a) Prohibition.--Except as set forth in subsection (b), the exercise by any condemnor of the power of eminent domain to take private property in order to use it for private enterprise is prohibited.26 Pa. C.S. §204.
(b) Exception.--Subsection (a) does not apply if any of the following apply:
* * *
(9) The property is used or to be used for any road, street, highway, trafficway or for property to be acquired to provide access to a public thoroughfare for a property which would be otherwise inaccessible as the result of the use of eminent domain or for ingress, egress or parking of motor vehicles.
In O'Reilly, a tract of land became landlocked by the Commonwealth's exercise of eminent domain to construct Interstate 79. The owner initiated proceedings under the Private Road Act to open a roadway to connect his land to a public road by crossing other properties. The owners of the other properties, one an individual and the other a homeowners association, objected to the road, contending that the Private Road Act would effect an unconstitutional taking. The trial court upheld the opening of the road because the public benefits when land resources are unlocked.
On appeal, this Court agreed with the trial court that the public would benefit from opening the road because it would allow the landlocked parcel to be productive and contribute to commerce and the tax base. On further appeal, the Supreme Court remanded the case to this Court to determine if the public was the "primary and paramount beneficiary" of the taking because this Court's opinion had identified only an indirect benefit to the public. O'Reilly, 607 Pa. at 300, 5 A.3d 258. The Supreme Court did not hold, as requested by the appellants, that the Private Road Act was unconstitutional.
This Court subsequently held that a remand to the trial court was necessary to consider whether the public was fairly regarded as the primary and paramount beneficiary. In the Matter of: Opening a Private Road for the Benefit of Timothy P. O'Reilly, 22 A.3d 291 (Pa. Cmwlth. 2011). The trial court has not yet made a ruling.
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Further, the Supreme Court did not consider Section 204(b)(9) of the Eminent Domain Code because the proceedings in O'Reilly had been initiated prior to the enactment of the 2006 amendments to the Eminent Domain Code. Section 204(b)(9) permits a condemnor to exercise eminent domain to take private property for a road "to provide access to a public thoroughfare for a property which would be otherwise inaccessible as the result of the use of eminent domain." 26 Pa. C.S. §204(b)(9). Although we recognize that Section 204 applies only to public condemnors, the amendment shows that the legislature intended to permit the taking of private land to construct a roadway to unlock property that has been landlocked by government actions.
Subsequent to its remand decision in O'Reilly, the Supreme Court has upheld the use of the Private Road Act for opening landlocked private property. In In re Private Road in Speers Boro, II, Washington County, 608 Pa. 302, 11 A.3d 902 (2011), property zoned for heavy industrial use was landlocked to the north, south, and west by other land and to the east by the Monongahela River. The previous owners had access to a public roadway across the land to the south, but the purchaser did not acquire that right. The trial court appointed a board of viewers, which determined that opening a private road was necessary.
An en banc panel of this Court vacated and remanded, holding that the board of viewers should have considered evidence regarding river access to the property. The Supreme Court affirmed this Court's decision, holding that the Private Road Act requires the board of viewers to consider all available means of access, including water. Id. at 308, 11 A.3d at 906. Again, the Supreme Court did not decide the question of the Private Road Act's constitutionality. However, it approved its application in Speers Boro II, which confirms the continued viability of the Private Road Act.
Applying the foregoing principles to the present case, 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. The public may fairly be regarded as the primary and paramount beneficiary of such a roadway because the Raaps' property became landlocked as a result of the Commonwealth's exercise of eminent domain, and the public unquestionably benefits from using the public highway that was relocated in that project. 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.
Finally, the Waltzes contend that even if the private road sought in this case was necessitated by the Commonwealth's exercise of eminent domain, such relief is not available to the Raaps because the property was landlocked when they purchased it. We disagree. Under both the Private Road Act and Section 204(b)(9) of the Eminent Domain Code, the ability to open a roadway is not limited to any time period nor is it limited to the owner at the time the property became landlocked. A property owner may decide for any number of reasons not to initiate an action to open a private roadway immediately upon the land becoming closed to entry. For example, the landowner may have permission to travel over a neighbor's land; it is only when the permission is revoked that the crisis develops. It does not follow that the landlocked property must remain forever inaccessible. A subsequent purchaser is entitled to access land that has been landlocked by government action, regardless of when the government action occurred.
For all of the foregoing reasons, we reverse the trial court's order and remand this matter for further proceedings.
________________________
MARY HANNAH LEAVITT, Judge
In Re: Tax Parcel 27-309-216
Scott and Sandra Raap, Appellants
v.
Stephen and Kathy Waltz
No. 975 C.D. 2012
ORDER
AND NOW, this 15th day of March, 2013, the order of the Court of Common Pleas of Lycoming County dated March 19, 2012, in the above-captioned matter is hereby REVERSED and the case is REMANDED for further proceedings.
Jurisdiction relinquished.
________________________
MARY HANNAH LEAVITT, Judge
In Re: Tax Parcel 27-309-216
Scott and Sandra Raap, Appellants
v.
Stephen and Kathy Waltz
No. 975 C.D. 2012
Argued: December 10, 2012
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
DISSENTING OPINION BY
SENIOR JUDGE COLINS
I respectfully dissent. I cannot discern any public benefit from the opening of this roadway. I must conclude that the primary and paramount beneficiaries of this proposed roadway will be the Raaps. I further disagree that it is irrelevant that the parcel was landlocked when the Raaps purchased it in the open market.
________________________
JAMES GARDNER COLINS, Senior Judge