Judges Opinions, — December 23, 2015 10:24 — 0 Comments

In Re: The Vacation of a Portion of Township Road T-505 No. 2014-01110

Civil Action-Law-Petition to Vacate Public Roadway-Board of View-Report and Recommendation-Exceptions-Error of Law-Abuse of Discretion-Substantial Evidence-Uselessness, Inconvenience or Burdensome Nature of Road-Access Point to Homes-Alternative Route Fire and Safety Equipment-Future Development in Area-Dangerousness of Road-Private Citizen Right to Privacy-Interest of Municipality in Public Roads

1. Petitioner Sandra Herr, whose Petition to Vacate a portion of a public road bisecting her property was denied by the Court upon adoption of a report and recommendation of the Board of View, filed Exceptions with the Court, asserting that the Board of View abused its discretion in denying her Petition because its report and recommendation were not supported by substantial reasons.

2. In reviewing a report of a board of view, the record must be reviewed for an error of law, an abuse of discretion or findings that are not supported by substantial evidence.

3. A road may be vacated if it has become useless, inconvenient or burdensome 36 P.S. § 1981.

4. The reasons provided by the Township that the road was not useless, inconvenient or burdensome, including that the road serves as an access point to other homes in the area, the road provides an alternative route for fire and safety equipment, the road will accommodate potential future development in the area and the use of the road by others to spot deer and to monitor crops, serve as substantial reasons for the road’s continued existence.

5. Even though an expert provided testimony that the road was too narrow and steep to be used safely and evidence was presented that the relevant portion of the road minimally was improved and consisted of mostly dirt and some road stone, the safety of the road did not provide a justification for closure of the road, as the road is rural and rarely traveled and potential liability for any dangerousness of the road would attach to the township, not the petitioner.
6. A private citizen’s desire for privacy cannot outweigh a municipality’s desire for an open roadway for public use.

7. Petitioner failed to establish that the road has become useless, inconvenient or burdensome so as to permit vacation of the road pursuant to 36 P.S. § 1981.

L.C.C.C.P. No. 2014-01110, Opinion by Bradford H. Charles, Judge, October 13, 2015.


CIVIL ACTION – LAW NO. 2014-01110



AND NOW, to wit, this 13th day of October, 2015, in accordance with the attached Opinion, it is hereby ordered that Petitioner’s Exceptions to the Report of the Board of View are DENIED.







Kenneth C. Sandoe, Esq. For Sandra Herr




John W. Ditzler, Esq. For Swatara Township



Opinion, Charles, J., October 13, 2015

This case pits the desire of a property owner for privacy against the interest of local government in providing infrastructure. Sandra Herr (hereafter “PETITIONER”) asks us to overturn a political decision made by Swatara Township. Because the Township’s decision was supported by adequate reasons, we cannot conclude that the Board of View abused its discretion. We will not, indeed we cannot, substitute our opinion for the reasoned choice made by a democratically-accountable political entity.


This matter originated on June 16, 2014, when PETITIONER filed a Petition to Vacate a Portion of Township Road T 505, known as Cemetery Road. The Road bisects PETITIONER’s property. Most of the Road is macadam, but the portion that crosses Petitioner’s property is minimally improved and consists mostly of dirt and some road stone. All of Cemetery Road, including the portion that is macadam, is steep and one-lane.

On June 17, 2014, Judge Kline appointed a Board of View to resolve the matter. On August 27, 2014, the Board viewed the Road and conducted a hearing. At the hearing, PETITIONER’s expert, James Birdsall, recommended vacating the Road because it is not safe and the cost of making it safe would be prohibitive. Getting the Road to comply with “minimum standards”, he opined, would include widening the Road to two lanes. It would also require the installation of drainage systems, grates and guardrails. All of this would cost $228,500.00. This figure is astronomically higher than the figure presented by David Golding, the Township’s engineer, who recommended keeping the Road open for emergency access to the 20 homes the Road currently services. This would require re-grading the Road and widening it to 12 feet, at a cost of $11,100. The alternative would be to construct cul-de-sacs at each end of PETITIONER’s property. Mr. Birdsall testified that the cost of constructing the cul-de-sacs would be $9,000 each.

Rick Sidle, PETITIONER’s son and the former owner of the subject property, is concerned about the liability to which PETITIONER would be exposed by keeping the Road open. He testified that the Township made improvements to the Road after PETITIONER filed her Petition in 2014. At his request, the Township temporarily blocked the Road with stones during the winter of 2013-14. After they removed the stones, Mr. Sidle blocked the entrance with his car. There are “no outlet” signs posted at both entrances to PETITIONER’s property. A few of PETITIONER’s neighbors testified that while traffic on the Road is sparse, it exists.

John Caporaletti, the owner of Full Circle Investors, testified that he obtained an approved development plan along the north side of Cemetery Road. Although there are already two routes by which to access the proposed development site, as well as a third route providing emergency access, the Road does provide quicker access to and from these homes on a seasonal basis. Finally, Dean Patches, a Swatara Township Supervisor, testified that the Township wants to keep the Road open for safety and future development reasons.

On November 10, 2014, the Board issued a Report, recommending that the Petition be denied. It concluded that, while the Road was used infrequently, it serves a compelling interest and is not useless, inconvenient or burdensome. It is used to spot deer, by a farmer to monitor his crops and as a secondary access point for the homes in the area. The Township is also expecting future development in the area. The cost to maintain the Road for its current use is minimal compared to the cost of constructing the cul-de-sacs otherwise required. On December 1, 2014, PETITIONER filed Exceptions, but did not list the case for disposition until August. We conducted oral argument on September 25. The issue is now ripe for adjudication.


PETITIONER argues that the Board abused its discretion in denying the Petition because its decision was not supported by substantial reasons. A road can be vacated if it has become either: (1) useless, (2) inconvenient or (3) burdensome. 36 P.S. § 1981; In re: Swamp Rd. in Wayne Twp., 859 A.2d 528 (Pa.Cmwlth. 2004). Since this standard is in the disjunctive, only one of the conditions need be met to justify vacation. Zeni v. Twp. Supervisors of Springhill Twp., 451 A.2d 809 (Pa.Cmwlth. 1982). Our standard of review requires us to peruse the record for error of law, abuse of discretion or findings not supported by substantial evidence. Id. at 530 fn. 2. These conditions are not cast in stone, but depend on the facts. Id. at 810.

In Zeni, the Court denied the petition to vacate the road at issue despite the fact that it was not maintained, was sometimes impassable and would cost a significant amount to repair. In addition, the road saw little use and attracted trash. Nevertheless, because witnesses testified that they used the road as a short cut and a route for deer hunting, as well as to access a garden and oil wells, the Court found that the road was not useless, inconvenient or burdensome.

Here, the Township has cited reasons to keep the Road open:

(1) It is used to spot deer,

(2) It is used by a farmer to monitor his crops,

(3) It is a secondary access point for the homes in the area;

(4) It provides an alternative route for fire/safety vehicles; and

(5) It will accommodate future development in the area.

While the first two reasons cited by the Township seem inconsequential, especially since only one individual testified to them, similar reasons were deemed sufficient in Zeni. Moreover, the other reasons are more significant. It has not been contested that the Road serves as an access point to other homes in the area. Safety reasons and accommodation of future development are perfectly legitimate reasons that support the Township’s decision.

PETITIONER argues that In re: Swamp Rd. is on all fours with this case and should control the outcome of this case. In Swamp Rd., the Board of Viewers agreed to vacate the road at issue, which was steeply-sloped and traversed a heavily-wooded area. The Court agreed with the board that the road was useless, inconvenient or burdensome because the road was infrequently used, dangerous and did not service any private property.

While we acknowledge that the case sub judice shares many similarities with Swamp Rd., our attention was drawn to several key differences:


(1) The road at issue in the Swamp Rd. case did not service any private land. In the present case, while the Road is not the exclusive means of access to private land, it does provide a short cut to a number of houses, which number may soon increase with the possible development of the Full Circle property. In a mountainous area such as this, seasonal shortcuts can provide significant time savings.

(2) The Road at issue in this case may be necessary to facilitate the potential of future development. Prompting economic growth is unquestionably a legitimate political goal of any Township.


In our opinion, PETITIONER cannot show that the Road is useless, because the Board has propounded reasons for its continued existence.

PETITIONER’s next argument is that Cemetery Road is dangerous. In support of this argument, PETITIONER refers us to the testimony of her expert, James Birdsall. Mr. Birdsall testified that Cemetery Road is too narrow and too steep to be used safely.

When we examined the photographs taken of Cemetery Road, we were forced to share PETITIONER’s concern about the safety of Cemetery Road. It is narrow. At certain locations, it is steep. If two oncoming vehicles approach one another, one will be forced to back away, and this can be a perilous proposition.

Notwithstanding our visceral impression that Cemetery Road could be dangerous, we must nevertheless reject this as a reason to vacate the Roadway. We do so because even the blacktop portion of Cemetery Road is just as narrow and as steep as the portion PETITIONER seeks to vacate. Cemetery Road is a rural, rarely-traveled Roadway, and it must be judged as such. If we were to declare that all steep and narrow roads should be closed as dangerous, many residents of Lebanon County would lose their ability to access their homes and property.

More important, we wish to emphasize to PETITIONER that if any liability exists because Cemetery Road is dangerous, that liability will attach to the Township and not to PETITIONER. We note that the Township has hired a lawyer and has fought to maintain the existence of Cemetery Road. If someone uses the Road and is hurt because of a dangerous condition, the record of this dispute will no doubt be used in support of the proposition that the Township has rendered a conscious decision to bear any risks associated with the Roadway.

While we sympathize with PETITIONER’s argument regarding the safety of Cemetery Road, we must reach the same conclusion as the Court did in Zeni. As in that case, testimony and evidence have established that the Road sought to be vacated is in poor repair and is sometimes impassable. Nevertheless, the Road exists for a purpose deemed important to the elected representatives of the people who reside in the area. As in Zeni, this is enough for us to reject the request to vacate a public road.


Creating and maintaining public roads is an important governmental function. In fact, the public has a vested interest in the existence of a roadway system that enables citizens to access their property. While we respect PETITIONER’s desire to maintain privacy of her lot, a private citizen’s desire for privacy cannot outweigh a Township’s desire to keep a public roadway open for use. Stated simply, Swatara Township has made a political decision that Cemetery Road has utility and should be kept open. The Board of View agreed with the Township’s position. We cannot and will not second guess either the Township or the Board of View. Accordingly, we will enter an Order today denying PETITIONER’s Exceptions.


1) Evidently, a transcript of this proceeding has been produced, but a copy has not been provided to the Court. Regardless, our inability to access the transcript does not impede our ability to review this matter. See In re: Vacation of a Portion of Twp. Rd. 308 in Leidy Twp., 943 A.2d 372, 375 (Pa.Cmmwlth. 2002). This and the following summary of testimony is taken from the Report of Viewers, pp. 7-9.

2) Mr. Birdsall stated that if the Road were vacated, two cul-de-sacs with radii of 30 feet would have to be constructed. Mr. Golding said the cul-de-sacs would have to have diameters of 100 feet. A perusal of Swatara Twp. Gen. Code § 253-16 E(6)(a) reveals that Mr. Golding is correct as to the size. As to the price, Mr. Golding is an experienced engineer for the Township and surely has a more accurate view of the cost of constructing such infrastructure. In contrast, Mr. Birdsall only viewed the area in question once. The Board clearly did not find his self-serving testimony as credible as Mr. Golding’s. We will not disturb its credibility determination.

3) The development site is six acres away from the disputed portion of the Road.

4) Only one witness, Jeff Warner, cited this use.

5) This was also based solely on the testimony of Jeff Warner.

6) Obviously, the Township has rendered a political decision that the utility of keeping Cemetery Road open outweighs the potential liability that could occur if someone is hurt. Courts should not inject themselves into such political decisions.


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