holding the Board did not abuse its discretion by choosing one of three possible locations for laying out a private road
How later courts described this case
- holding the Board did not abuse its discretion by choosing one of three possible locations for laying out a private road
- defendant has burden of introducing “ ‘some substantial evidence tending to prove his drug dependency’ ”
Written by the judges who cited it.
The opinion
OLSZEWSKI, Judge,
concurring and dissenting:
I agree with the majority that an order granting a request to open a private road pursuant to 36 P.S. § 2731 is final and appealable. I respectfully disagree, however, with the majority’s decision to affirm the finding of the Board of Viewers. In my view, the Board abused its discretion in designating Plan No. 1 as the right-of-way.
Section 1785 of Title 36 requires that the Board consider the following factors in determining the site for a private *399 road: (1) the shortest distance; (2) the best ground; (3) the least injury to private property; and (4) as far as practicable, the desire of the petitioners. 36 P.S. 1785. A review of the findings of fact and conclusions of law submitted by the Board reveals no support for the selection of Plan No. 1 as the sight for the private road.
Section 1785 first requires that the Board take into consideration the shortest route for a private road. It is undeniable that Plan No. 1 encompasses the greatest distance. Indeed, the total length and area of Plan No. 1 (2,596.31 feet/.9965 acres) is over twice that of Plan No. 2 and more than one-third longer than Plan No. 3. Therefore, this Section 1785 factor should weigh against the adoption of Plan No. 1.
The Board, however, appeared to be unpersuaded. In giving “consideration” to this factor, the Board stated:
The Board took into account all of the first three factors specified in the Act and after weighing all three concluded that Plan No. 1 was the most practical way ... in spite of the fact Plan No. 1 is longer.
Findings of fact and conclusions of law, 3/21/86 at 11 (emphasis in original). In effect, the Board simply paid lip service to this factor. This error by the Board is not without consequence; having failed to consider and properly weigh one of the four factors, the balance of the remaining factors easily tips in appellees’ favor.
The second Section 1785 factor requires that the Board consider “the best ground for the road.” 36 P.S. 1785. The evidence of record readily supports a finding that the best ground for the road is in Plan No. 1. As the Board noted, the lands contained in Plans No. 2 and 3 have have relatively high grades and are prone to water runoff. Accordingly, the use of vehicles during the winter and rainy seasons would be difficult. 1 On the other hand, the ground in Plan *400 No. 1 is nearly level with a relatively dry terrain. This factor, therefore, easily weighs in favor of Plan No. 1.
Third, the Board was required to determine which route would cause the least injury to the private property. As for this Section 1785 factor, the Board stated: “Plan No. 1 would be more inconvenient ... because in part it would divide in two parts a plot ... which is cultivated, crop-producing farmland.” Findings of fact and conclusions of law at 8. In justifying its conclusion, the Board also noted that Plan No. 1 “causes more injury than the others [but] ... is designed to minimize the injury to the field of Earl J. Temple by following contour lines and crop rows where it crosses the field and by being on the edge of the field for the remainder of the way.” Id. at 11. Despite the Board’s attempt to minimize the injury to appellants, the fact remains that Plan No. 1, unlike Plans No. 2 and 3, severs appellants’ prime, crop-producing farmland. Prime farmland simply should not be sacrificed when laying out a private road. 2 Based upon the evidence presented at the hearing as well as the Board’s own statements, I believe that this factor weighs against the use of Plan No. 1.
The fourth Section 1785 factor requires that the Board consider the desire of the petitioners. Given that this factor will always favor the petitioning party, some measure of restraint is necessary in giving weight to this consideration. Consequently, the petitioner’s desire is tempered by a notion of practicability. It is only to an extent which is “practicable” 3 or reasonable that a petitioner’s desire is taken into consideration.
*401 In this case, appellees favored Plan No. 1. Pursuant to the fourth Section 1785 factor, the question presented to the Board was as follows: Is it practicable to permit appellees to build a lengthy, private road through the prime farmland of one property owner and over the land of another owner, merely because the route has a smaller grade and would be less costly to maintain? 4 I believe the Board acted improvidently in answering this question in the affirmative. The private interest of appellees in obtaining an access route of choice should be subservient to the interest of the landowner whose property is being confiscated. In other words, Section 1785 permits appellees to obtain a practicable or reasonable road, not the best possible road.
A review of the Section 1785 factors establishes that two factors—the length of the road and the injury to private property—weigh against adoption of Plan No. 1. One factor—the best ground for the road—weighs in favor of that plan. As for the last factor—the desire of appellees—I believe the Board acted improvidently in concluding that neither Plan No. 2 nor Plan No. 3 was a reasonable alternative.
Finding that the balance of the Section 1785 factors weigh against the adoption of Plan No. 1, I would, therefore, reverse.
. Appellees’ expert opined that with maintenance Plan No. 2 could be made drivable in all seasons. Notes of hearing before Board of Viewers, 6/28/85 at 46.
. Although the provisions of the Act creating the Agricultural Lands Condemnation Board, Act No. 100 of 1979, 71 Pa.S. § 106, are not directly applicable, the Act evidences an express policy of this Commonwealth to preserve farmland.
. "[Practicable] means the accomplishing of something which is reasonable to accomplish, and it includes the doing of what is unreasonable or unnecessary____ ‘A thing practicable must necessarily be possible, but a thing may be possible that is not practicable.’ ’’ Jeannette Glass Co. v. Indemnity Insurance Co., 370 Pa. 409, 417 , 88 A.2d 407, 411 (1952) (Musmanno, J., dissenting).
. The cost of building a road is not a factor in this determination. Appellees’ expert witness could not determine whether Plan No. 1 (which is a more lengthy route), or Plan No. 2 (which has a steeper grade) would be a more costly alternative. The testimony established, however, that Plan No. 2 would be more costly to maintain.