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Berry's Mountain neighbors battle over road  

A neighbor’s use of a little-known Pennsylvania law is wreaking havoc with Janet Greene and Randy Wolfe.

The Halifax Twp. couple live in the woods on Berry’s Mountain in northern Dauphin County. Their neighbor, Glenn R. Noblit, is demanding the right to build a private road across their land. Late last year, he sued the couple and their lawyer, Joel M. Wiest of Sunbury, for $105,000 for standing in his way.

“He wants to run a 50-foot [wide] road just behind the house,” said Greene, 50, citing Noblit’s original petition to have the private road built. “I’m not afraid of him, but I’m afraid of his actions. He thinks he can come and do whatever he wants on this property.”

Noblit said in his lawsuit that he needs the road to harvest oak trees appraised at $21,400 on 17 acres he has owned since 1972 at the top of Berry’s Mountain. But Greene and Wolfe said they fear his real intention is to lease the ground to a wind-farm developer or sell it for homes.

They have no proof of those concerns. However, Gamesa Energy, a Spanish wind energy company, is testing the winds in Upper Paxton Twp. on the summit of Mahantongo Mountain, the next mountain ridge to the north of them. Meanwhile, a developer has proposed mountaintop homes to the west across the Susquehanna River in Perry County. Another developer also has surveyed land near their home after having acquired about 23 acres from Dauphin County for $800.

Greene and Wolfe also described several incidents of alleged harassment by Noblit, including one where they claim he pointed a rifle at them. Noblit denied that claim in his lawsuit and maintained in court papers that his neighbors are harassing him.

Noblit did not respond to several phone calls seeking comment. His lawyer, John J. Krafsig Jr. of Harrisburg, said the lawsuit against the couple and Wiest speaks for itself.

An 1836 Pennsylvania law, the Private Road Act, gives owners of landlocked property – meaning not accessible by a public road – the right to force a private road across the property of neighbors, if they can persuade a court-appointed Board of View they need the access.

Neighbors forced to surrender land are paid damages, but have little ability to oppose the taking. They must hire a lawyer and go to court to assert what few rights they have.

The law has withstood constitutional challenge, most recently in 1994 when Commonwealth Court ruled in a Bucks County case that private roads could have “public” uses. That meant such roads could be taken under the rules of eminent domain, which is the government’s ability to seize private property at a fair price if the land is needed for a public purpose.

In 2003, the Pennsylvania Supreme Court, in a private-road case from Franklin County, disagreed with the lower court’s conclusion. However, the high court side-stepped ruling on the law’s constitutionality because it had not been asked to do so. The 1836 law remains in effect.

Private road takings were exempted from an eminent domain reform bill passed by the Legislature and signed by Gov. Ed Rendell last May.

“You have to provide access to landlocked land,” said Allen Shaffer, a lawyer in Millersburg who has practiced since 1951. “We’ve done these on several occasions. [The Board of View determines] the best access to the land, and sometimes they wind up in court.”

He acknowledged that private road cases can cause bitterness among the parties involved.

Building a dream home:

Greene and Wolfe can’t see neighbors from where they live. The forest is too thick, the neighbors too far away.

Their driveway angles off a dirt road that snakes up Berry’s Mountain. The house sits in Halifax Twp., but some of their 21 acres are over the line in Jackson Twp.

Fisherville is the nearest town.

They have worked for years to improve the house, a former hunting cabin. An enclosure for their dogs adjoins it. Wolfe laid underground telephone and electric cables to the main road, a three-month job, so they wouldn’t have to chop down trees.

They estimate 300 to 400 of their trees would have to be chopped down to create the 50-foot right-of-way Noblit wants. It would run approximately 2,139 feet from Noblit’s property to Mill Road, according to the road petition.

Their problems date back a decade, but the bulk of the issues were within the past three years, Greene and Wolfe said.

One was on Nov. 20, 2003, according to Noblit’s lawsuit. Noblit accused Janet Greene of pulling out in front of him while he was driving a backhoe pulling a trailer load of lumber down Tourist Park Road near his home. Greene contended that Noblit was driving with no lights on and came at her when he saw her pulling out.

“He saw me pulling out, aimed the backhoe at me, lowered the two forks to come under my car, but did not touch the car with the forks,” Greene said.

She said Noblit told her he had to lower the forks to stop the backhoe.

Board weighs in:

The road dispute had its formal beginning on May 23, 2005. That was when a Board of View appointed by Dauphin County Court went to Berry’s Mountain to consider Noblit’s request for a private road over the property of Greene and Wolfe.

Francis Zulli, a Harrisburg lawyer, is chairman of the board. The other two members are Jacqueline Kirby, a Harrisburg real estate agent, and Donald LeVan, a retired engineer and surveyor. Zulli declined to discuss his impressions of the case.

According to Noblit’s lawsuit, Greene made an obscene gesture out her car window while driving past his house on June 5, 2005. She denied it, saying, “I wouldn’t do that,” but she said a passenger in her car, who was visiting from out of state, might have done it.

In the summer of 2005, Wiest filed a joinder petition seeking to add 11 other property owners on the mountain to the road petition, so Noblit might find other access to his property. Efforts to reach Wiest for comment were unsuccessful.

Greene and Wolfe contended that better routes to Noblit’s property are found on other property than their own. That was the purpose of adding the others, they said. Several existing private roads are on the mountain, including an old stagecoach road.

Dauphin County Judge Scott Evans dismissed the petition on Jan. 12, 2006, and the 11 defendants eventually were removed from the lawsuit.

Greene and Wolfe said the most serious issue occurred on March 29, 2006, although Noblit said in his suit it occurred on June 16, 2005.

Greene said she heard trees falling and suspected Noblit was on their property. She and Wolfe climbed up from their home toward the ridge of Berry’s Mountain with a video camera. She said they observed Noblit marking trees on their property for removal.

When they challenged him, she said, Noblit raised a rifle and pointed it in their direction and they screamed and dived behind trees. Noblit said in his lawsuit he only had surveying equipment with him and denied pointing a firearm at the couple.

Greene had turned off the video camera just before seeing the rifle, she said. She filed an incident report with state police but did not seek to file charges, believing it would be viewed as their word against his. Noblit said in his lawsuit that state police came to his house about the incident, but left after he denied pointing a gun.

Survey raises issues:

Part of their problem with Noblit stems from a resurveying of the mountain done for Charles M. Fogarty, a subdivision developer from Boiling Springs, Greene said. Fogarty, who did not return several calls seeking comment, acquired a 23-acre tract near the site of the confrontation. Fogarty bought the land from Dauphin County for $800 in 2004.

According to Greene, Fogarty’s survey found different boundaries for several properties on the mountain.

Noblit’s land, which on deeds went to the ridge of the mountain, was “pushed down the mountain” onto what Greene and Wolfe believe is their land, Greene said. William Burch, the surveyor from Millersburg, said everything he did was proper and that Greene and Wolfe are trying to claim land they don’t own.

Different boundary lines are not an unusual outcome when Pennsylvania land is resurveyed, according to David Ross, prosecuting attorney for the state Board of Professional Engineers, Land Surveyors, & Geologists at the Department of State in Harrisburg.

Most of the properties in that area were first surveyed before the Revolutionary War, he said. Surveyors used poles and chains, not global positioning systems.

“Imagine going up and down the hills around here,” Ross said. “And trying to run a straight line.”

Not all surveyors back then employed permanent objects to mark boundary lines. They might have used a tree that has since died or a stream that has changed course, he said.

Yet even with modern equipment, a survey is “an opinion,” Ross said. It doesn’t automatically alter the old boundary lines. Only a county court in Pennsylvania can order changes in those. But a property owner who feels victimized by someone’s survey has to pay to hire a lawyer to challenge it.

Dispute enters court:

Noblit filed his $105,000 lawsuit against Greene, Wolfe and Wiest on Nov. 7, saying their objections to his proposed road, legal and otherwise, were calculated to “harass, delay and deny plaintiffs their rights to relief by creating a legal procedural nightmare.”

Krafsig, Noblit’s lawyer, said that much as he would like to discuss the case in detail, he is barred from doing so, or suggesting his client do so, by rules set by the Disciplinary Board of the Supreme Court of Pennsylvania.

“All I can tell you is that a lot of problems are presented there,” Krafsig said of the lawsuit. “It’s not just one item. That may reveal why this action was filed.” He added: “We have nothing to hide.”

David L. Schwalm, a lawyer with the Thomas, Thomas, & Hafer firm in Harrisburg, now represents Greene and Wolfe. In his preliminary objections to the Noblit lawsuit, he suggested that Noblit was trying to have his cake and eat it, too.

“In essence, plaintiffs now complain that they were forced to expend sums prosecuting a legal action that they initiated because defendants did not sit idly by and agree to plaintiffs’ petition for [a] private road, but rather, sought to defend the action.”

Schwalm said Noblit’s petition for the road should be rejected because Pennsylvania legal precedent allows Boards of View to approve private roads of up to 25 feet in width. Noblit is seeking a 50-foot right-of-way, according to his road petition.

Krafsig took issue with anyone who would characterize the lawsuit as a SLAPP, an acronym for Strategic Lawsuit Against Public Participation. SLAPPs are sometimes filed by land developers against individuals or groups, mainly to stop them from opposing a project. The legal fees in getting such a lawsuit dismissed can be crushing.

“That’s kind of an ill-conceived remark given the facts,” Krafsig said. “You don’t do something like this lightly.”

In 2000, the Legislature enacted an anti-SLAPP law proposed by Reps. Camille “Bud” George, D-Clearfield, and Bret Feese, R-Lycoming. But in 2004, a Montgomery County court ruled in favor of a land developer and limited the scope of the law. Commonwealth Court rejected an appeal of the judge’s ruling on Dec. 28, 2005.

Zulli, chairman of the Board of View that is examining Noblit’s demand for a private road, said he expects to hold a hearing in the case in February.

He said the first order of business will be to decide whether Noblit’s land is truly landlocked. Second will be determining whether an access road is a necessity.

If those two hurdles are jumped, then damages to Greene and Wolfe will be determined.

“The board has discretion as to location,” Zulli said. “But if the property is landlocked, there’s not a whole lot [Greene and Wolfe] can do about it.”

By David DeKok
Of The Patriot-News
255-8173 or ddekok@patriot-news.com

pennlive.com

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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