1/10/2007

1836 law unfairly imposes takings upon innocent party: Harrisburg PA Patriot-News, 1/9/07

Editorial

Pennsylvania's 1836 Private Road Act remains on the books as a legal anachronism that may have been justified back when Penn's Woods was still mostly woods. Applied today, as is being done on Berry's Mountain in upper Dauphin County, it constitutes an injustice that needs to be taken off the books.

Glenn R. Noblit has owned a 17-acre landlocked parcel on the top of Berry's Mountain since 1972. He is suing Janet Greene and Randy Wolfe to build a 2,139-foot-long, 50-foot-wide right of way through their property to access his parcel.

Greene and Wolfe vigorously oppose the move through their 21 wooded acres in Halifax Twp. that they say could involve taking 300 to 400 trees.

Noblit says he wants the road to harvest oak trees. But Greene and Wolfe fear he may actually have in mind leasing the ground to wind-farm developers or selling it for homes, staff writer David DeKok reported in the Sunday Patriot-News.

In accordance with the 1836 law, a Board of View has been appointed by Dauphin County Court to consider Noblit's request and determine whether there is a legitimate need for a private road and, if so, where it will best be located and what damages are to be paid to the owners of the land.

The basic problem with the 1836 law in the modern era is that it unfairly imposes the consequences of one person's actions on others who had no role in them. Greene and Wolfe didn't cause Noblit's problem, and they should not have to pay for his decision back in 1972 to buy a landlocked parcel without first securing a right-of-way to the property.

And while he may be planning to take timber, the fact that he is seeking a right of way large enough for a two-lane road suggests he may be looking beyond that to putting something of greater and more enduring impact on the mountaintop.

It may or may not be a coincidence that a land developer purchased a nearby parcel of 23 acres from the Dauphin County Tax Claims Bureau in 2004 for $800. That transaction raises additional questions about the county's tracking of orphan properties (or lack of same) and the disposal of them in the best interests of the common good.

Noblit may - or may not - have the law on his side. But this situation resembles in some important ways the case of Kelo v. City of New London, in which the U.S. Supreme Court ruled 5-4 that eminent domain could be used to take private property to give to a private developer for economic development. That ruling prompted a national furor that in some states has led to revisions of eminent domain laws.

While the Berry's Mountain conflict does not involve eminent domain per se, by any measure it involves a "taking" from a private owner for the benefit of another private owner. That such actions remain potentially legal in 2007 should prompt the same outrage in Pennsylvania as the Kelo case did around the country.

And with wind and housing developers today aggressively eyeing the state's long-verdant ridge tops, this is likely not the last case of its kind. That is, unless the Legislature promptly and appropriately assigns this 1836 law to the dustbin of history.


Harrisburg PA Patriot-News: http://www.pennlive.com/editorials/patriotnews