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The Legal Intelligencer
Dating as far back as 1735, when the commonwealth was a province controlled by the heirs of William Penn, Pennsylvania has recognized the importance of public roads and their role in preserving a landowner’s right to access his land. Since that time, it has become a foregone conclusion that the government, at all levels, will provide and maintain public roadways. However, because of the necessary impact on the rights of individual landowners, the creation of anything from a federal highway to a municipal alleyway involves complex legal considerations. While the legal implications involved in the creation of public roads through eminent domain or dedication are well known, the abandonment or “vacation” of public roads also has a significant impact on the property rights of individuals, governments and the public. Recently, the Commonwealth Court, in In Re Vacating of Old Route 322, No. 384 C.D. 2020 (Pa. Cmwlth. Mar. 3, 2021), considered what happens when adjacent landowners allege a public roadway has become so “useless, inconvenient or burdensome,” that the municipality is required to vacate it under the General Road Law, 36 P.S. Sections 1781-2293. Although the case is unreported and not precedential, it may be cited for persuasive value, and offers an opportunity to review of this understudied area of the law.
Local roads often are established by dedication, where a landowner offers land for public use, and the municipality accepts it on behalf of the public. Typically, when a municipality accepts a road dedication it holds that property in trust only for the use for which it was dedicated. This means the dedication of a public road does not invest the municipality with fee title to the land on which it rests but only the right to use, maintain, regulate and control that land as a road. The public then obtains a right of passage over the road, but the fee continues to be held by the owners of the land. When the public is no longer benefited by the use of the land as a public road, the municipality has the power, and sometimes an obligation, to vacate the road.
Municipalities are only authorized to open or vacate public roads by statute. For example, in Pennsylvania boroughs are authorized to vacate streets within their borders in accordance with the Borough Code, 8 Pa.C.S.A. Section 101 et seq., and second class townships in accordance with the Second Class Township Code, 53 P.S. Sections 65101. Both are also constrained and impacted by other statutes including the General Road Law. Generally, a municipality may vacate a road within its borders by ordinance following public notice, as well as personal notice to the owners of any property abutting the road. Most statutes provide affected property owners or other residents the opportunity to request a hearing or review of the ordinance which is then appealable to the Common Pleas Court. Furthermore, because landowners have an inalienable, compensable, right of access to their property which may be affected by the vacation of a public road, under the Eminent Domain Code, 26 Pa.C.S. Section 715, the affected property owners may recover damages for any injuries sustained by a violation of this right. This means that municipalities generally may not vacate a road where it is the sole means of access to a tract of land.
However, property owners are not always harmed by vacation of roads abutting their land. As noted above, when a public road is vacated, neither the municipality nor the public retains any right to the land. Rather, because the fee remained with the owners of the dedicated land, each abutting landowner generally will take title of its relevant portion up to the centerline of the street, even if the properties are deeded only to the edge of the right-of-way. Consequently, certain abutting landowners may desire that a roadway be vacated, and the law provides pathways for them to accomplish that goal. Returning to the examples above, the Borough Code, Section 1732, 8 Pa.C.S. Section 1732, and the Second Class Township Code, Section 2304, 53 P.S. Section 67304, permit landowners to petition the municipality to vacate a municipal road. Upon the denial of the petition or a failure to act upon it, the petitioners may present the petition to the Common Pleas Court pursuant to the General Road Law.
Under Section 18 of the General Road Law, 36 P.S. Section 1981, Common Pleas Courts have the authority, upon application by petition of abutting landowners, to vacate the whole or any part of any private or public road whenever it has become “useless, inconvenient or burdensome.” The petitioner only needs to prove that one of these conditions is present. In addition, these terms are not defined, and the courts have found their interpretation to be fluid and entirely fact dependent. Upon receipt of a petition, the court may appoint a board of viewers to hold hearings on the issue, whose findings are then appealable to the court.
In In re Old Route 322, individuals owning property abutting “Old Route 322” in Paint Township, Clarion County (township), petitioned the township to vacate the roadway. The township failed to act, and the landowners subsequently presented a petition to Clarion County Common Pleas Court. The court appointed a board of viewers (board), which held evidentiary hearings to determine whether the roadway met the requirements for vacation under the General Road Law. The board found that while the roadway had become overgrown with grass, weeds and other debris, and was not actively patrolled or maintained by the township, it remained valuable as it produced a certain amount of revenue in liquid fuel tax monies, provided a public and emergency access route to the nearby river, could possibly provide access to a public park in the future, and remained the only land access point to a parcel owned by a nonparty power company. Consequently, the board found that the petitioners had failed to prove that the road was useless, inconvenient or burdensome, and denied the petition.
Following the petitioners’ appeal, the Common Pleas Court adopted the board’s findings and conclusions. In the subsequent appeal to the Commonwealth Court, the petitioners alleged that the trial court erred by finding that the township had standing to assert the private property rights of the power company, and improperly considered certain evidence regarding the use and value of Old Route 322.
The Commonwealth Court began its analysis by stressing the importance of an individual landowner’s, as well as the public’s, ability to access one’s land by road, pointing out that roadway access to individual parcels had been required in Pennsylvania dating back to the early 1700s. It further noted that it was “without question” that a township has the authority to oppose vacation of a township road. The court explained that the township was not asserting the private property rights of the power company, but was instead identifying deficiencies in the petitioners’ argument by showing that they had not proven that the roadway was useless to the power company.
The Commonwealth Court concluded that the board properly relied upon the evidence presented by the township. It held that the liquid fuel tax money received by the township due to its ownership of the roadway was relevant, reasoning that because the statutory term “useless” was “not cast in stone,” the petitioners’ argument that it could pertain only to a physical use of the road was meritless. The court then disposed of the petitioners’ arguments that the board erred because the township’s evidence regarding possible future use of the road to access a park was speculative and that the evidence that the road was valuable for public and emergency access was contradicted by testimony that access was blocked by a locked barrier. The court found that these issues went to the board’s exclusive province over matters involving the credibility of witnesses and the weight afforded to the evidence, which could not be disturbed on appeal. Finally, the court noted that the trial court properly relied on cases which found vacation improper because the roads in question provided the only access to private properties. The court concluded that the trial court had properly found that vacation was not required, as Old Route 322 had not been shown to be useless, inconvenient, or burdensome.
Although the court in In Re Old Route 322 ultimately sided with the township, it should serve as a cautionary tale. A municipality’s rights in dedicated roads are not absolute and are subject to challenge. Consequently, municipalities should be mindful that a failure to maintain or use a public road may result in industrious property owners seeking vacation of the roadway.
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Reprinted with permission from the April 22, 2021 edition of The Legal Intelligencer© 2021 ALM Media Properties, LLC. All rights reserved.