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A party seeking a right of way over private land is not required to seek permission from the county who holds an open space easement in the land.
Ephrata Area School District v. Lancaster County,
886 A.2d 1169 (Pa. Cmwlth. 2005), app. granted, 889 A.2d 1125 (Pa. 2006).
A school district negotiated directly with a private landowner to obtain a right-of-way to build an access road for a new elementary school. The landowner had previously granted an open space easement to the county. The school district asked the county to adopt a resolution either relinquishing the open space easement in the area of the proposed right of way or affirming that the proposed right of way would not interfere with the open space easement. The county denied the request. The district then sought a declaratory judgment that 1) the proposed right of way did not interfere with the county’s easement, and 2) the district did not need the county’s permission to acquire a non-interfering right of way from a private landowner.
At trial, the county conceded the right of way would not interfere with its open space easement; however, the court held that Section 11(a) of the Open Space Lands Act required the district to obtain the permission from the county.
On appeal, the Commonwealth Court interpreted the Open Space Lands Act differently from the trial court and reversed. Section 11(a) of the Open Space Lands Act, 32 P.S. Section 5011(a), states, in pertinent part, “In the case of an acquisition [of a right of way] from a local government unit . . . , such acquisition shall occur only if the governing body . . . approves such acquisition.” The trial court interpreted this language to require the district to obtain the county’s permission. Disagreeing, the Commonwealth Court held that Section 11(a) requires a local government’s permission only when the local government owns the underlying land, not merely an open space easement in the land. In this case, because a private landowner owned the underlying property, the district did not need to seek the county’s permission in order to obtain the right of way.
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