A state appeals court has ruled against a landowner who wanted to access his landlocked property by building a road through a neighbor's land, the latest decision in a long-running dispute about how the Private Road Act should be applied.
The unanimous Commonwealth Court ruling issued Wednesday said Fayette County property owner Timothy O'Reilly wasn't entitled to the road because it would primarily benefit him and not the wider public, under a legal standard recently established by the state Supreme Court.
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The Private Road Act has roots in the colonial era, and its current version dates to 1836. The high court four years ago determined that such private road actions are subject to the same constitutional restrictions as takings under eminent domain.
All but one of the seven appeals judges, though, joined in a concurring opinion that said they believed the Supreme Court majority got it wrong.
Judge Bonnie Brigance Leadbetter said there are hundreds or even thousands of landlocked parcels in the state and the state Supreme Court has rendered them "forever inaccessible and thus unusable and essentially worthless."
"I believe this to be, in a very real sense, a taking without compensation, a constitutional harm which far outweighs the more theoretical countervailing constitutional concerns" in that higher court decision, she said.
Judge Renee Cohn Jubelirer disagreed, saying the requirement that such roads benefit the public above all was a way to balance the competing constitutional interests.
"Relying on indirect public benefits, such as a property's ability to be used, occupied or taxed at its true value, to support the grant of a private road in favor of a private landowner may not adequately protect against the harm the creation of that private road may cause to the neighboring property owner," Jubelirer wrote.
The two parcels were landlocked when Interstate 79 was built in 1963, about a decade before O'Reilly obtained the first one. He filed a petition to open a private road after his Allegheny County township authorized a nearby development to build a public road in 2001. That case made it to the state Supreme Court, which said the standard for allowing a private road across someone else's land is that the public must be the "primary and paramount beneficiary."
Judge Mary Hannah Leavitt said the Private Road Act has essentially been abolished, putting landlocked property owners at their neighbors' mercy.
"The neighbor may decide to enlarge his own land holdings to include the landlocked parcel by using it for 21 years and then claim title by adverse possession," Leavitt wrote. "The landlocked property owner could prevent adverse possession by fencing his parcel, but he will need to engage a helicopter to erect that fence."
The previous owners of O'Reilly's land settled with the state when the interstate was going through, said Kevin Allen, lawyer for the homeowners' association and many of its residents.
"Does (the ruling) make it more difficult for the use of the Private Road Act? Yes, it does, but that's due to the longstanding constitutional principle that private property can only be taken for public use or public benefit," Allen said.
O'Reilly's lawyer did not return a phone message seeking comment.