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WILLIAM F. LAGLER AND CARL P. LAGLER v. UPPER MILFORD TOWNSHIP ZONING HEARING BOARD AND UPPER MILFORD TOWNSHIP (06/16/82)

decided: June 16, 1982.

WILLIAM F. LAGLER AND CARL P. LAGLER, APPELLANTS
v.
UPPER MILFORD TOWNSHIP ZONING HEARING BOARD AND UPPER MILFORD TOWNSHIP, APPELLEES



Appeal from the Order of the Court of Common Pleas of Lehigh County in the case of William F. Lagler and Carl P. Lagler v. Upper Milford Township Zoning Hearing Board and Upper Milford Township, No. 80-C-1038.

COUNSEL

F. Paul Laubner, for appellants.

John R. Hudders, for appellee, Upper Milford Township Zoning Hearing Board.

John O. Stover, Jr., with him Wallace C. Worth, Jr., Worth Law Offices, P.C., for intervening appellee, Upper Milford Township.

President Judge Crumlish and Judges Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt. Judge Mencer did not participate in the decision in this case.

Author: Blatt

[ 67 Pa. Commw. Page 201]

The appellants,*fn1 owners of a 5.7 acre parcel of property in Upper Milford Township (Township), appeal an order of the Court of Common Pleas of Lehigh County which affirmed a decision of the Zoning Hearing Board (Board) to deny a building permit to the holders*fn2 of a sales agreement.

The basis of the Board's decision was that construction could not begin on the land concerned, which adjoins Ridge Road, without subdivision approval having been first obtained from the appellee Township. The appellants, however, point to the Township's

[ 67 Pa. Commw. Page 202]

Subdivision and Land Development Ordinance (Ordinance) which requires subdivision only where there is contiguous land unbroken by a public street or road. They maintained before the Board and court below and they argue here that their property is intersected by a public road (Ridge Road) and that, inasmuch as the portion of land for which the building permit is sought lies completely on one side of this road, there is no need for subdivision. The dispositive legal issue here, therefore, is whether or not Ridge Road is a public road.

In Stewart v. Watkins, 427 Pa. 557, 235 A.2d 604 (1967), our Supreme Court stated that there are three methods for establishing the existence of a public road in a second class township such as this:

The first is the introduction of court records showing the road to have been opened under the Act of June 13, 1836, P.L. 551, 36 P.S. § 1781 et seq. The second is that provided in The Second Class Township Code of May 1, 1933, P.L. 103, § 1105, 53 P.S. § 66105, setting forth the circumstances under which there arises a conclusive presumption that a road is public. The third is by prescription, requiring uniform, adverse, continuous use of the road under claim of right by the public for twenty-one years.

Id. at 558-59, 235 A.2d at 605. The second of these methods is the one under which the appellants contend that Ridge Road is public and Section 1105 of the Second Class ...


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