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APPEAL FROM PASSAGE ORDINANCE 4354 CITY ALTOONA (08/04/76)

decided: August 4, 1976.

IN RE: APPEAL FROM PASSAGE OF ORDINANCE 4354 OF THE CITY OF ALTOONA, PENNSYLVANIA. DAVID L. BAIRD AND LINDA Z. BAIRD, HIS WIFE, AND MARTIN GOODMAN, APPELLANTS


Appeal from the Order of the Court of Common Pleas of Blair County in case of In Re: Appeal from Passage of Ordinance 4354 of the City of Altoona, Pennsylvania, No. 328 October Term, 1974.

COUNSEL

Beth B. Croyle, with her Goodman, Notopoulos & Silverman, for appellants.

Paul S. Foreman, for appellees, Howe, Schreiber, and Martin.

N. John Casanave, for appellee, City of Altoona.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Crumlish, Jr. Concurring and Dissenting Opinion by Judge Blatt.

Author: Crumlish

[ 26 Pa. Commw. Page 2]

David L. Baird and his wife, Linda Z., together with Martin Goodman (Appellants) seek review in this Court from a final order of the court of common pleas which denied and dismissed, in part, their appeal from the passage of Ordinance 4354 by the Council of the City of Altoona (City) vacating the dedication of Kenyon Road to the City.*fn1

Appellants contend "that if certain authoritative acts by a municipality are sufficient to imply the acceptance

[ 26 Pa. Commw. Page 3]

    of a street, then a reservation in an ordinance of vacation to do the very same acts from which courts have concluded an implied acceptance negates the intent to vacate." We disagree.

The proposition that a municipality, after accepting a dedicated road for all purposes, may vacate the road for purposes of public travel while maintaining a utility easement, is one of first impression.

After reviewing the record and the case law,*fn2 we have no doubt that Goodman dedicated Kenyon Road, "[h]owever, like any contractual offer, it must be accepted by the municipality for the purpose offered in order to constitute a complete dedication"; Tri City Broadcasting v. Howell, 429 Pa. 424, 426, 240 A.2d 558 (1968), and we agree that the City accepted the dedication.

What we are confronted with here is whether the City, in vacating Kenyon Road, can reserve to itself an easement extending its length and width "for the construction, maintenance and operation or reconstruction of utilities in, through, over or under the same." Phrased differently, did the City Council abuse its discretion by enacting the vacation ordinance? We will not inquire into the City's motives for the vacation but we will review its action to determine ...


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