PA Commonwealth Court recently found that a property owner was not entitled to a private road across a neighboring property since it appeared that the property owner was entitled to an easement by necessity across another property.

In In Re: Laying Out and Opening of: Private Road in Hazle Township, owners of a landlocked property petitioned the Court pursuant to the Private Road Act for a road across a neighbor’s property to connect to PA Route 309. The Board of View determined that the property owners were not entitled to a private road because they could assert an easement by necessity over another property. The Commonwealth Court held that it was proper for the Board of View to consider whether the property owners could assert an easement by necessity across another property other than the property which was the subject of the Petition to Permit a Private Road.

The Pennsylvania Commonwealth Court found “When reviewing a request to open a private road under the Act, we are cognizant that the Act is in the nature of eminent domain and, therefore, must be strictly construed.” The Court further found that while the Board of View cannot “quiet title and make a determination binding on the affected landowners as to whether an easement by necessity exists, it is not error for a Board of Viewers to consider whether it appears that an easement by necessity exists. The potential existence of such an easement is relevant to the question of whether a private road is strictly necessary.”

The Pennsylvania Commonwealth Court recently ruled that PennDOT met its burden to condemn agricultural property for a project in Lebanon County. In Dept. of Transp. v. Agricultural Lands Condemnation Approval Board, PennDOT sought to condemn productive agricultural lands for a transportation use. Pursuant to the Farmland Protection Policy Act, the Agricultural Lands Condemnation Approval Board considered the PennDOT project. It found that PennDOT did not prove that there was no reasonable and prudent alternative to the alternative selected by PennDOT and denied PennDOT’s request to use its condemnation power to acquire the lands. On appeal, the Commonwealth Court reversed holding that the Board acted capriciously and ignored overwhelming evidence that there was no reasonable and prudent alternative to the condemnation of the lands.

I just completed a 2 week trial in Burlington County, New Jersey in which the jury awarded my client – the property owner – $1,607,000. The case involved a “partial taking” by the New Jersey Dept. of Transportation of a portion of the frontage of a shopping center in Marlton, NJ. The NJDOT’s last offer was $194,000.

The biggest issue in the case was the extent to which the property owner was permitted to seek damages caused by a closed driveway. New Jersey, like many states, limits a property owner’s ability to obtain damages for a change in access. Generally, New Jersey property owners are not permitted to seek such damages as long as the remaining access is reasonable. However, there are exceptions including if the change in access caused “on site impact” such as vehicular maneuverability issues.

This is an issue that is likely to receive a great deal of attention given the spike in roadway projects.

Planning for the last phases of the Marshalls Creek Bypass Project – which PennDOT now calls the “Marshalls Creek Traffic Relief Project” – continues. The project was put on hold in April due to funding issues. PennDOT held a public meeting in October to discuss the options for this phase of the project which can be viewed at

PennDOT posted the following update on January 2, 2009 on its website:

Project Milestones Reached
• PennDOT submitted the Final Traffic Reports to FHWA on November 24, 2008.
• PennDOT submitted the Final EIS (Environmental Impact Statement) Re-Evaluation on November 26, 2008.
• The Kick-Off Meeting for Final Design was held on December 2, 2008.
• A meeting for the Section 106 Programmatic Agreement (environmental/historical compliance agreement) amendment was held on December 4, 2008, with FHWA, SHPO (State Historic Preservation Office), and PennDOT’s District and Central offices.
• The Phase III Archaeology report was delivered to FHWA and PHMC on December 30, 2008.
• A Right-of-Way review meeting was held at the PennDOT District Office on December 30, 2008.
• The Park-and-Ride project bids were reviewed and there is an apparent low bidder (Leeward Construction of Honesdale).
• Core borings have begun and will continue through February 1, 2009.

Upcoming Project Milestones
• The Environmental Review and Permitting will continue to be the challenge when trying to advance the Design/Build contract.
• Rettew Associates is scheduling a preliminary meeting with the permitting agencies for the “bypass” portion of the project.
• The Dewberry Team continues to advance the Final Design.
• The next Bi-Monthly Coordination Meeting is set for January 13, 2009.
• Park-and-Ride lot construction to begin in the spring and last one construction season.

One of the new buzzwords these days is “infrastructure.” It is likely that Congress will enact an ambitious economic stimulus package soon after President-elect Obama is inaugurated. One important component will be funds that will be spent on “infrastructure” including roads and bridges.

State officials are drawing up plans for bridge and road improvements in anticipation of funds from a federal economic stimulus package. PennDOT has stated that they are confident that Congress will make money available for replacements and repair projects early next year.

PennDOT has a number of projects that have been stalled due to lack of funding. It is very possible that PennDOT will use an influx of federal funds for these projects. It is unclear at this point the extent to which the projects will involve acquiring property through the power of eminent domain.


Montgomery County Pennsylvania’s planning commission is considering a transportation program that could cost $150 million. The Commission recently met to discuss a county program that could involve local governments and the private sector paying for an improvement program for local roadways and bridges. The Commissioners stated that there have been repeated complaints from residents and businesses about traffic congestion.

According to reports, Commissioners appear to be committed to some type of program and are considering a few options. The most popular option includes a 10-year program that would involve over 70 projects. This option would require voter approval to borrow $150 million. One project example cited was widening Route 309 in Montgomery Township to six lanes between Upper State and North Wales roads along with adding turn lanes and reconfiguring accesses to businesses.

The planning board members said they hope to finalize a recommendation at the November 12, 2008 meeting and submit a proposal to Commissioners by the end of the month.