IN RE: Petition of the BOROUGH OF DOWNINGTOWN
Nо. 12 MAP 2016, No. 13 MAP 2016, No. 14 MAP 2016, No. 15 MAP 2016, No. 16 MAP 2016, No. 17 MAP 2016, No. 18 MAP 2016, No. 19 MAP 2016, No. 20 MAP 2016, No. 21 MAP 2016, No. 22 MAP 2016, No. 23 MAP 2016
Supreme Court of Pennsylvania
June 20, 2017
161 A.3d 844
ARGUED: December 7, 2016
IN RE: Petition of the BOROUGH OF DOWNINGTOWN
Appeal of: Friends of Kardon Park and Ann Feldman
In re: Petition of the Borough of Downingtown
Appeal of: Friends of Kardon Park and Ann Feldman
In re: Petition of the Borough of Downingtown
Appeal of: Friends of Kardon Park and Ann Feldman
In re: Petition of the Borough of Downingtown
Appeal of: Friends of Kardon Park and Ann Feldman
In re: Petition of the Borough of Downingtown
Appeal of: Borough of Downingtown, Council of the Borough of Downingtown, Progressive Housing Ventures, LLC and J. Loew & Associates, Inc.
In re: Petition of the Borough of Downingtown
Appeal of: Borough of Downingtown, Council of the Borough of Downingtown, Progressive Housing Ventures, LLC and J. Loew & Associates, Inc.
In re: Petition of the Borough of Downingtown
Appeal of: Borough of Downingtown, Council of the Borough of Downingtown, Progressive Housing Ventures, LLC and J. Loew & Associates, Inc.
In re: Petition of the Borough of Downingtown
Appeal of: Borough of Downingtown, Council of the Borough of Downingtown, Progressive Housing Ventures, LLC and J. Loew & Associates, Inc.
In re: Petition of the Borough of Downingtown
Appeal of: Kim Manufacturing Company and Stewart Hall, L.P.
In re: Petition of the Borough of Downingtown
Appeal of: Kim Manufacturing Company and Stewart Hall, L.P.
In re: Petition of the Borough of Downingtown
Appeal of: Kim Manufacturing Company and Stewart Hall, L.P.
In re: Petition of the Borough of Downingtown
Appeal of: Kim Manufacturing Company and Stewart Hall, L.P.
Jeffrey Concini Clark. Esq., Wix, Wenger & Weidner, P.C., for Pennsylvania State Association of Township Supervisors, Amicus Curiae.
George Jugovic Jr., Esq., Kurt John Weist, Esq., Citizens for Pennsylvania‘s Future, for PA Land Trust Association & PA Recreation and Park Society, Amicus Curiae.
Samuel C. Stretton, Esq., Law Office of Samuel C. Stretton, for Friends of Kardon Park and Ann Feldman, Appellant.
Robert L. Byer, Esq., Duane Morris, L.L.P, Louis J. Colagreco Jr., Esq., Riley, Riper, Hollin & Colagreco, P.C., Robert McCarthy Palumbos, Esq., for J. Loew & Associates, Inc and Progressive Housing Ventures, LLC, Appellee.
David Dembe, Esq., Claudia M. Tesoro, Esq., PA Office of Attorney General, for Office of Attorney General, Appellee.
Henry Fintan McHugh, Esq., Petrikin, Wellman, Damico, Brown & Petrosa, P.C., for Kim Manufacturing Company and Stewart Hall, L.P., Appellee.
Patrick C. O‘Donnell, Esq., Gawthrop Greenwood, PC, Patrick Michael McKenna, Esq., for Borough of Downingtown and Council of the Borough of Downingtown, Appellee.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
JUSTICE TODD
In these consolidated cross-appeals, we accepted review to consider whether three statutory provisions—the “Donated or Dedicated Property Act” (“DDPA“),1 the “Project 70 Land Acquisition and Borrowing Act” (“Project 70 Act“),2 and the Eminent Domain Code3—allow Appellant Downingtown Borough (“Borough“)4 to sell to private housing developers—Appellants Progressive Housing Ventures, LLC and J. Loew and Associates, Inc. (“Developers“)—four parcels of land that, collectively, comprise “Kardon Park,” a public
I. Background
A. Factual History
Downingtown Borough, in which Kardon Park is primarily situated, is one of Pennsylvania‘s oldest communities.5 Founded as a colonial frontier village in 1716, the Borough has, from its inception, been a hub of industrial activity. An ample number of bustling corn and grist mills operated there during the 1700s, and it served as a vital supply depot for the colonists during the Revolutionary War. Later, during the Industrial Revolution in the 1800s, a number of paper mills and various other manufacturing industries began operating in and around the Borough. Manufacturing remained a cornerstone of the Borough‘s economy throughout the majority of the 20th century.
Despite this industrial history, the Borough has made a concomitant effort to acquire and reserve land for the establishment of public parks. Thus, in 1925, the Borough created Kerr Park, a municipal park along the eastern banks of Brandywine Creek, which was noteworthy in that it was sustained not only by public expenditures, but by a community subscription program in which Borough residents voluntarily paid a monthly fee for maintenance and operation of the park. Kardon Park, at issue herein, was likewise created by the Borough for similar public purposes through a series of land acquisitions in the 1960s and 1970s, explained in more detail infra. It lies just east of Kerr Park, and straddles the northern border of the Borough with East Caln Township.6
Consistent with this historical legacy of dual-purpose land use within the Borough, some of the land on which Kardon Park is located was formerly used for industrial activities and as a disposal area for byproducts of those activities. In the 1930s, the property which now comprises the western part of the park was extensively quarried for minerals by its owners. Once the minerals were exhausted, the open quarry pits were filled in with industrial waste generated by various industries operating within the Borough, as well as municipal waste. Orphans’ Court Opinion, 10/7/10, at 5. The waste dumped into these quarries included iron slag, heavy metals, paper, and wood prоducts. Id. at 18. The waste layer that accumulated
,from the years of dumping, which is intermixed with soil, ranges from 2 to 12 feet in thickness, and occupies an area of approximately 250,000 cubic yards. Id.
Beginning in the 1960s, the Borough began acquiring, through various means,
In 1964, to address the problem of dwindling land available for public recreation and conservation uses, and in response to the accelerating population growth of urban and suburban areas, the General Assembly passed the Project 70 Act which authorized the Commonwealth to borrow up to $20 million to provide financial assistance to local governments for the acquisition of lands which were either currently being used for recreational, conservation, or historical purposes, or which could be put to such uses in the future. See
Act authorizes the General Assembly to furnish to the municipality up to fifty percent of the cost of acquisition of such lands. Id.
The Borough obtained Project 70 Act funds in 1968 and used them to finance fifty percent of the cost of two parcels of land, which it purchased from Downingtown Paper Company: a 14-acre tract in East Caln Township, the northern third of which is occupied by a man-made pond known as “Fourth Lake,” UPI 40-1.23.1; and an adjoining 7.4-acre piece of property located in the Borough, bordering the first parcel at its southern edge, UPI 11-4-13. The Borough used its own public funds to cover the other half of the total purchase price of $12,671.20. These two parcels were
In 1974, the Borough exercised its power of eminent domain, via ordinance, and acquired UPI 11-4-14.2, a 7.4-acre piece of property which adjoins the Meisel Parcel immediately to the west of Second Lake. The declaration of taking provided that the purpose of this condemnation was “to expand and enlarge recreation places and space within the borough limits.” Declaration of Taking, 11/13/74 (R.R. at 2417). The ordinance authorizing the condemnation provided that the property was being acquired for “park and recreation purposes.” Ordinance, 11/14/74 (R.R. at 2416). In 1977, the Borough again utilized its eminent domain authority, via passage of another ordinance, to obtain title to an adjoining 4.3-acre wooded tract of land immediately to the west of the first condemned parcel, UPI 11-4-14. Just as with the first condemnation, its purpose was “to expand and enlarge recreation places and space within the borough limits,” and the authorizing ordinance stated that the land was being taken for “park and recreation purposes.” Declaration of Taking, 6/20/77 (R.R. at 2420); Ordinance 6/22/77 (R.R. at 2425). These two parcels were collectively designated by the lower courts, and will be referred to herein, as the “Southern Parcels.” It is these five parcels—the Northern Parcels, the Southern Parcels, and the Meisel Parcel—which are the subject of the case before us.
In 1978, the Borough Council, Borough Manager, and the Mayor of Downingtown Borough held a ceremony at which they named and dedicated the Southern Parcels as “Kardon Park,” and they erected a sign on Pennsylvania Avenue, which serves as the lower boundary of the Southern Parcels, that read “Kardon Park.” Orphans’ Court Opinion, 10/7/10, at 8, 14. Thereafter, in 1984, a paved, multi-use trail was constructed in the park by the Borough, which named it the “Lion‘s Trail.” It runs along the western banks of Second and Third Lakes, traversing the entirety of the Southern and Northern Parcels, whereupon it exits the park and joins with the “Struble Trail,” which is a part of the national Rails to Trails Network. At the same time, the Borough also constructed a parking lot at the southern end of the park near Pennsylvania Avenue for use by park patrons. Since its opening, Lion‘s Trail has been used continuously by members of the public for jogging, walking, and biking. In 2004, the Borough allowed the Crime Victims’ Center of Chester County, a non-profit crime victim‘s advocacy organization, to erect a permanent “Victims of Violence Memorial,” which is the site of annual services in honor of those who died from acts of violence. Id. at 5-6.
Since 1984, the Borough has continually performed maintenance activities in the park, such as planting and mowing the grass, caring for the trails and the area around the Victims of Violence Memorial, and erecting signage to guide park users. The park has been and continues to be popular with Borough residents and other members of the public who use it for numerous outdoor activities such as picnics, bird watching, and family and social gatherings, and the ponds in the park are used
In the early 1990s, the Borough began envisioning a different use for a portion of the land in the park—commercial development. Id. at 6. In preparation for selling the property to a developer, in 1999, the Borough sought and obtained a release from the General Assembly of the Project 70 Act restrictions on Northern Parcel UPI 11-4-13, in exchange for the Borough‘s imposition of Project 70 Act restrictions on another parcel of land owned by the Borough, and on an additional parcel the Borough pledged to obtain. See Act of June 25, 1999, P.L. 220, No. 29, §§ 2-4.
That same year, the Borough sought “Act 2” clearance from the Pennsylvania Department of Environmental Protection (“DEP“),12 and it enlisted an environmental engineering firm, Golder Associates, to perform an assessment of the surface and subsurface soil in the park, as well as the groundwater, to identify any contaminants which were present, and to prepare a plan for their remediation. Golder‘s environmental analysis identified various heavy metals and industrial byproducts present in the park soil. Orphans’ Court Opinion, 10/7/10, at 6. Golder ultimately concluded, though, that “risks due to potential direct contact of both park users and park groundskeepers to contaminants in the surface soil at Kardon Park were within limits established by the Pennsylvania DEP.” Id. at 7. Golder additionally conducted surveys of park users and Borough employees. Id. at 6-7. This survey revealed that 77 percent of the park‘s recreational usage was by people utilizing its trails for walking, running, jogging, biking, roller-skating, or skateboarding, and that the average length of use was 10 minutes or less. Id. at 7. Golder included all of this information in a report submitted to the DEP, formally requesting Act 2 clearance, which the DEP granted in 2000, with the stipulation that the park property to the west of the walking trail and extending to the park‘s northern border with East Caln Township would be restricted to commercial uses, and the remainder of the property would be limited in use to “non-residential park uses.” DEP Order, 1/14/00, 3-4 (R.R. at 2468a).
In July 2006, the Borough formally sought proposals from prospective buyers who were willing to purchase and redevelop the park. Developers were the successful bidders, and, on August 24, 2007, Developers and the Borough entered into a purchase agreement pursuant to which Developers agreed to buy the Northern Parcels, the Southern Parcels, and the Meisel Parcel for the purpose of constructing a mixed use development, which would include 305 individual residential units, 40 combination residential and commercial rental units, and 20,000 square feet of commercial space. Orphans’ Court
Opinion, 10/7/10, at 7; Agreement to Purchase and
Additionally, a new environmental engineering firm, Advanced GeoServices, was retained tо review the prior environmental risk assessment performed by Golder. In a March 2008 report, Advanced GeoServices found “exposure to collective concentrations of arsenic, iron and mercury encountered on the [park] Property represents an unacceptable risk to park users.” Orphans’ Court Opinion, 10/7/10, at 8. Advanced GeoServices crafted a comprehensive plan to address the contamination which called for a two-foot layer of topsoil to be spread over the areas in which waste had historically been dumped. The DEP approved this plan in August 2008, agreeing that the proposed soil cap was “an equally conservative and appropriate option to eliminate exposure pathways and maintain the stability of the historic fill.” DEP Letter, 8/6/08 (R.R. at 2475a). Subsequently, in March 2009, the Commonwealth Department of Community and Economic Development approved a grant of $990,000 to defray the cost of this proposed remediation.
In January 2009, the Borough amended its municipal code to create the “Kardon Park Redevelopment District,” which authorized the planned development in the area occupied by Kardon Park. Subsequently, the purchase agreement between the Borough and Developers was modified on September 16, 2009, and, under this revised agreement, the Borough retained ownership of portions of the park property encompassed by the entirety of the Meisel Parcel and a part of Northern Parcel UPI 40-1.23.1. This retained property included all three of the park‘s ponds, its trails, the parking area, the “millrace“, the Victims of Violence Memorial, and “surrounding open space/park areas.” Second Amendment to Purchase Agreement, 9/16/09, at 2 (R.R. at 1231a). However, with respect to both of these parcels, the Borough granted to the Developers:
free, uninterrupted perpetual and/or temporary (as applicable) easements over, under and through the Park Property as [Developers] reasonably require[] in order to (i) construct any improvements and perform any work on the Park Property shown on or required by the [Borough‘s] Conditional Use Approval, approved final subdivision and/or land development plans, or by other governmental approvals, including any environmental remediation (ii) construct or extend utilities to serve the development of all or any part of the remainder of the Property, Additional Property or Option Property, (iii) discharge storm water into the ponds, and (iv) maintain such improvements to the extent of any ongoing maintenance responsibility of the [Developers] or of any community association organized to maintain common amenities of [Developers‘] development.
Id.
In July 2010, the Borough‘s Board of Supervisors granted Developers conditional use approval for the construction of their proposed development, which required that Northern Parcel UPI 40-1.23.1 and the Meisel Parcel continue to be public open space, but also allowed Developers the permanent right to discharge stormwater into Fourth Lake, the pond on Northern Parcel UPI 40-1.23.1. The Borough additionally pledged to obtain removal of any deed restrictions mandated by the Project 70 Act. Once the construction of the development was complete, the Borough was entitled under the agreement to receive a percentage of the sale price of each of the dwelling units, and it pledged to use those monies, in conjunction with other public funds, to build a new firehouse
B. Procedural History
In January 2009, residents of the Borough, Ann M. Feldman, Marion Ungrich, Evelyn Hopkins, and Rosetta Tootle—who presently live near the park property—in conjunction with a non-profit corporation they had founded with other Borough residents and other interested parties—“Friends of Kardon Park“—commenced an action in equity in the Chester County Court of Common Pleas for declarative and injunctive relief to prohibit the Borough from carrying out the planned sale of the park property. In February 2009, a similar action, seeking the same prоhibitory injunction, was filed in the same court by Kim Manufacturing Company, which owns and operates a metal fabrication company adjacent to the park property on its western side, and by Stewart Hall, L.P., which owns the land on which Kim Manufacturing is situated. (Collectively these parties, who are the designated appellees in this matter, will be referred to as “Objectors“).
In March 2009, the Borough filed a petition with the Chester County Orphans’ Court seeking approval for the sale. The petition alleged that the orphans’ court had jurisdiction of the matter under the DDPA.13 The orphans’ court, by the Honorable Katherine B.L. Platt, subsequently consolidated the pending action for declaratory and injunctive relief with the orphans’ court suit, and granted Developers leave to intervene.14 In September and November 2009, the orphans’ court conducted five days of hearings, and, after considering the voluminous evidence and arguments of the parties, issued an opinion in October 2010 denying the Borough‘s petition.
Before addressing the orphans’ court‘s analysis, we briefly discuss the DDPA. As our Court observed in the decision of In re Erie Golf Course, 605 Pa. 484, 992 A.2d 75 (2010), the fundamental purpose of the DDPA, enacted by the General Assembly in 1959, was to delineate “the fiduciary nature of municipalities’ obligations relative to donated and dedicated properties and provide for orderly relief therefrom in appropriate circumstances.” Id. at 86. As relevant to the present matter, the DDPA deems lands situated within a political
subdivision which have been “dedicated to the public use ... as a public facility” as “held by [the] political subdivision, as trustee, for the benefit of the public with full legal title in the said trustee.”15
(1) Substitute other lands or property of at least equal size and value held or to be acquired by the political subdivision in exchange for the trust property in order to carry out the trust purposes; (2) If other property is not available, sell the property and apply the proceeds to carry out the trust purposes; (3) In the event the original trust purpose is no longer practicable or possible or in the public interest, apply the property or proceeds therefrom in the case of a sale to a different public purpose; [and] (4) Relinquish, waive or otherwise quitclaim all right and title of the public in and to such land and buildings as have been apparently dedicated but for which no formal acceptance appears of record: Provided, only, That the court is satisfied upon hearing the evidence that there is no acceptance by implication arising out of public user or otherwise, the court shall also deter-
mine the consideration, if any, to be paid to the political subdivision.
Id.
Section 3386 of the DDPA reserves to political subdivisions a right of control over public lands16 which they acquire by purchase or condemnation:
Nothing in this act shall be construed to limit or affect the control by a political subdivision of public lands or buildings acquired by such political subdivision by purchase or condemnation.
Id.
In the instant case, to adjudicate the Borough‘s claim of relief under the DDPA, the orphans’ court looked to Erie Golf Course.17 The orphans’ court regarded this case as establishing that it, not the Borough,
original use “is no longer practicable or possible or has ceased to serve the public interest.” Orphans’ Court Opinion, 10/7/10, at 13.
Noting that our Court in Erie Golf Course failed to define what constitutes a “dedication to public use” under Section 3382, the orphans’ court utilized a definition offered by the Commonwealth Court. See White v. Twp. of Upper St. Clair, 799 A.2d 188, 193 (Pa. Cmwlth. 2002) (“Dedication may be found in a single act, such as the giving of a deed or the recording of a plan, or it may be found from a series of acts, all consistent with and pointing to the intention to dedicate.“). Accordingly, to determine if the park had been dedicated to public use, the court considered the Borough‘s stated reasons for acquiring the land to create the park—to expand the available land in the Borough which could be utilized for recreation activities, historical, and conservation purposes—as well as the Borough‘s lengthy history of maintaining and making improvements to the park, and the continuous recreational and other public uses of the park by the community. Although the court noted that certain areas of the park were used more heavily by patrons—such as the walking trail, the areas around the Victims of Violence Memorial, the ponds, and the parking areas—the court nonetheless concluded that the public had always been given access to the entire park property and used those other areas from time to time. Consequently, the court concluded that the park property, as a whole, was dedicated to public use.
The court next considered whether the use of the park property for public purposes had become impossible, impracticable, or no longer served the public interest. Observing that there was a complete lack of legal authority regarding the burden of proof the Borough had to meet to demonstrate these factors, the court chose to apply a preponderance of the evidence standard. The court rejected the Borough and Developers’ argument that the contaminated soil in the western portion of the park rendered the park, as a whole, unsuitable for its continued use by the public. The court found that, even after both environmental assessments identified the presence
of heavy metals and toxic waste imbedded in the soil, the Borough took no action to restrict the public‘s access to the whole park, including its western areas which were the most heavily polluted, and the Borough continued to maintain the park so that it was open for the same public activities for which it had historically been used.
Moreover, the court noted that the Golder assessment found nothing which demonstrated that the park‘s use by the public—the majority of which, as Golder determined, was for brief periods of time ten minutes or less—posed any substantial health risk to patrons, even those who continued to use the western areas of the park. Accordingly, in the court‘s view, because the evidence of record showed the public use to which the park was dedicated remained unchanged even after the identification of the contaminated soil, the Borough failed to demonstrate by a preponderance of the evidence that the park‘s original use was impracticable or impossible, or that the park had ceased to serve the public‘s interest. Hence, the court ruled that the Borough did not have authority under the DDPA to sell any of the park property to the Developers.
disposition of “abandoned” property. See
With respect to the Northern Parcels and the Project 70 Act, the Commonwealth Court, noting that these parcels had been acquired by Project 70 Act funds, concluded that the orphans’ court erred in failing to consider the impact of the Project 70 Act on the Borough‘s right to convey the parcels under the DDPA.21 The Commonwealth Court opined that Section 3946.20 of the Project 70 Act required the express approval of the General Assembly in order for the owner of lands acquired through the use of Project 70 Act funds to dispose of them. The court reasoned that neither the common law public trust doctrine, nor the DDPA—which the court,
quoting from our decision in Erie Golf Course, found to incorporate the “‘salient common-law principles’ of the public trust doctrine“—restricted the Borough from selling Northern Parcel UPI 11-4-13 since the General Assembly had released it from Project 70 Act restrictions in 1999, and purportedly
The court also found support for this conclusion in Section 3386 of the DDPA, which provides that “[n]othing in this act shall be construed to limit or affect the control by a political subdivision of public lands or buildings acquired by such political subdivision by purchase or condemnation,”
Regarding the Southern Parcels, the Commonwealth Court found that the Project 70 Act did not apply since they were acquired through eminent domain, and there was no evidence that Project 70 Act funds were used to pay the condemnees. However, the court observed that Section 310(a) of the Eminent Domain Code permits a governmental body to sell property acquired by condemnation if the public purpose for which
it was condemned has been abandoned, and the other applicable conditions enumerated in Section 310(a) are met. Also, the court noted that “there must be an intent to abandon the condemned property coupled with external acts to achieve that end; mere non-use or lapse of time is not an abandonment.” Id. at 175. While the Commonwealth Court deemed these determinations to be ones for the finder of fact, it observed that, in this case, the orphans’ court failed to make any findings regarding these matters, and did not consider whether the provisions of the DDPA would supersede the Eminent Domain Code; thus, the court vacated the orphans’ court‘s order with respect to the Southern Parcels and remanded to the orphans’ court for further proceedings on these questions. The Commonwealth Court reiterated that our Court‘s statements in Erie Golf Course with respect to Section 3386‘s potential preservation of property rights acquired by a municipality, which it viewed as potentially including a right to freely dispose of property under Section 310(a), “could be the dispositive factor” with respect to the validity of the proposed sale of the Southern Parcels to the Developers. Id. at 175 n.19.
Lastly, the Commonwealth Court found that, because the easements granted to the Developers over the Meisel Parcel were “ancillary to the uses on the other parcels,” it was necessary to vacate the orphans’ court‘s order with respect to those easements and to remand for that court to consider “whether the construction, maintenance and utility easements as well as permission to discharge storm water into the two lakes are inconsistent with the use
Subsequent to the Commonwealth Court‘s decision in Downingtown I, the General Assembly enacted legislation removing some of the Project 70 Act restrictions from Northern Parcel UPI 40-1-23.1.23 See Act of Oct. 24, 2012, P.L. 1293, No. 162, § 6. However, this legislation required the following additional conditions be met: the Borough receive equal to or greater than the fair market value for the portion of the park property on which Project 70 Act restrictions were removed; the Borough reserve, via deed restriction, a minimum of 20 acres of current park property for continued use as a public park; the Borough deposit the revenue realized from the sale of Project 70 Act properties into an interest bearing account, and expenditure of monies in that account be restricted to making improvements to the park in accordance with a development plan approved by the Department of Conservation and Natural Resources (“DCNR“); and, after five years, the Borough disgorge any funds left in that account to the DCNR to be used to fund general conservation and recreation grants. Id.
On remand from the Commonwealth Court, the orphans’ court, following the Commonwealth Court‘s directive, first addressed whether the Eminent Domain Code superseded the DDPA and, thus, permitted the Borough to sell the Southern
Parcels without its approval. The Borough and Developers, citing Section 102 of the Eminent Domain Code,24 contended that the code provided the “complete and exclusive procedure” governing how a municipality may dispose of condemned lands, whereas Objectors countered that the DDPA and the Eminent Domain Code must be construed together and that the DDPA applied to the Southern Parcels, as they had been condemned specifically to create a park and the land continued to be
The orphans’ court explicitly rejected the Commonwealth Court‘s suggestion in Downingtown I that Section 3386 of the DDPA potentially precluded the application of the DDPA to property acquired by condemnation. The court noted that, in Erie Golf Course, our Court recognized that Section 3386, while preserving all rights and interests a municipality acquired in a piece of property through its purchase, nevertheless considered such purchased property to be subject to the provisions of the DDPA. See id. at 5-6 (“We do not believe, however, that [Section 3386] was intended to remove entirely from the Act‘s purview (and thus maintain inflexible irrevocability relative to) any and all trust property that may in any sense of the word be said to have been purchased.” (quoting Erie Golf Course, 992 A.2d at 88)).25 The court deemed this
reasoning equally applicable to property which a municipality has acquired through condemnation; hence, it concluded that a municipality‘s rights to dispose of condemned property were constrained by the provisions of the DDPA, and, thus, within its jurisdiction to determine:
In this case, the parcels acquired through condemnation were acquired for parkland purposes. As I found in the October 7, 2010 Opinion, the DDPA applies to the disposition of the Kardon Park parcels that have been used as parkland. Without the protection afforded public property by the DDPA, a municipality would have unchecked power to dispose of parkland and other trust property. The Commonwealth Court suggested that Section [3386] of the DDPA gives the Borough unfettered discretion to dispose of the Southern Parcels. 55 A.3d at 175, n. 19. This is inconsistent with the Erie Court‘s reluctance to find that Section [3386] removed “entirely from the [DDPA]‘s purview” certain trust property. Erie, supra. With the guidance from the Supreme Court in Erie regarding Section [3386] of the DDPA, I find that the Eminent Domain Code does not exempt the Southern Parcels from the applicability of the DDPA. Accordingly, the DDPA applies and Orphans’ Court continues to have jurisdiction in this case.
Id. at 7.26
Next, per the Commonwealth Court‘s instructions, the orphans’ court considered
releases, the Borough was nonetheless required to obtain its approval under the DDPA for sale of the Northern Parcels, and found that the Borough was not required to do so. The court observed that the Project 70 Act “has specific guidelines for disposing of property acquired with funds made available pursuant to the Act,” and that it had not previously considered the application of those provisions when rendering its prior decision, inasmuch as the Borough had not argued the applicability of the Project 70 Act in those proceedings. Id. at 13. The court, noting the Commonwealth Court‘s finding in Downingtown I that the General Assembly‘s passage of legislation in 1999 releasing Northern Parcel UPI 11-4-13 from Project 70 Act restrictions “specifically authorizes the Borough‘s conveyance of [that parcel] to Developers and that neither the DDPA nor the common law public trust doctrine prohibits the sale of parcel 11-4-13 to Developers,” decided that the legislature‘s 2012 enactment releasing Northern Parcel UPI 40-1-23.1 from Project 70 Act restrictions likewise authorized the Borough to dispose of those parcels.27 Id.
Finally, the orphans’ court addressed the question of whether the easements granted to Developers for the Meisel Parcel were inconsistent with the use of the parcel as parkland.28 The court determined that the expert testimony it had received
Tangentially, the orphans’ court additionally opined that, if the Commonwealth Court found the Borough‘s right to dispose of these parcels was exclusively conferred by the Eminent Domain Code, then the Objectors had no standing to challenge the sale as they are not condemnees, who are the only parties with standing under that code to make such a challenge. While, on appeal, the Commonwealth Court reversed this aspect of the orphans’ court‘s decision, we did not grant allowance of appeal to review that question.
during the remand hearing established that the easements would not be inconsistent with the Meisel parcel‘s current use as public parkland. Accordingly, in the orphans’ court‘s view, the DDPA was not implicated, and so it found that there was no need for it to conduct further proceedings under that act in order for it to determine if the conveyance of the easements by the Borough was permissible therеunder. Given that neither party was wholly successful in obtaining their desired relief, both parties appealed to the Commonwealth Court.
Objectors as well as the Borough and Developers filed cross-appeals to the Commonwealth Court, which considered the case en banc, and affirmed the orphans’ court‘s rulings in a 4-3 per curiam decision in In re Borough of Downingtown, 116 A.3d 727 (Pa. Cmwlth. 2015) (“Downingtown
The court deemed Section 3384 of the DDPA to govern the Borough‘s proposed sale of the Southern Parcels. The court noted that, in order for a political subdivision to convey property under the DDPA, it must initially meet the require-
ments of the first paragraph of Section 3384, which necessitates that the political subdivision show that “continuation of the original use of the property is no longer practicable or possible and has ceased to serve the public interest.” Id. at 735 (quoting Section 3384). The court agreed with the orphans’ court‘s finding that the Borough could not show that the continued use of these parcels was no longer practicable or possible, nor could it demonstrate that Kardon Park ceased to serve the public interest. Id.
In the court‘s view, inasmuch as the Borough did not meet Section 3384‘s threshold criteria, Section 3386—reserving political subdivision‘s rights in property acquired by purchase or condemnation—was not implicated. Even so, the court considered the application of Section 3386 as it was interpreted by our Court in Erie Golf Course. The Commonwealth Court agreed with the orphans’ court‘s extension of our Court‘s holding in that case to property acquired by condemnation. Embracing the orphans’ court‘s rationale, the court found that, since our Court had declined to read Section 3386 as excluding purchased property from the DDPA, it would be “illogical to conclude that the same reasoning would not apply to property acquired by condemnation.” Id. at 736.
Moreover, the court rejected the contention by the Borough and Developers that Section 310(a) of the Eminent Domain Code compelled a different result. The court considered this section as applicable only to sales of condemned land for which the public use of that land had been abandoned. The court found that the purpose for which the Southern Parcels were condemned, as offered by the Borough in its notice of condemnation, was “to expand and enlarge recreation places and space within the borough limits, [and that] the Borough achieved that purpose and Kardon Park continues to satisfy that purpose in the present day.” Id. at 737 (internal quotation marks omitted). The court therefore affirmed the orphans’ court‘s order requiring the Borough obtain its approval for the sale of the Southern Parcels.
Regarding the issue of whether the Project 70 Act or the DDPA governed the Borough‘s right to sell the Northern
Parcels,
Additionally, the court viewed this conclusion as consistent with the principle of statutory construction set forth in Section 1933 of the Statutory Construction Act30—that whenever two statutes are irreconcilable, the statute which is more specific prevails—and the court, ostensibly regarding the DDPA and the Project 70 Act as irreconcilable, found the Project 70 Act, which specifically applied to property purchased with Project 70 Act funds, controlled over the more generally applicable DDPA. Consequently, the court held that the orphans’ court
did not err in concluding that, in light of the legislature‘s release of the Project 70 Act restrictions on the Northern Parcels, orphans’ court approval under the DDPA was not required for the Borough to sell them to Developers.
Lastly, the court purported to address the question of whether the Borough‘s grant of easements to the Developers over both the Meisel Parcel and Northern Parcel UPI 40-1-23.1 required orphans’ court approval. In conducting its review, however, the court was limited to the orphans’ court‘s findings regarding the Meisel Parcel as, in its opinion, it had not discussed the impact of the easements on Northern Parcel UPI 40-1-23.1.31 The Commonwealth Court nevertheless found the orphans’ court‘s findings to be supported by the record. Accordingly, the court affirmed the orphans’ court‘s ruling that the DDPA was not implicated by the Borough‘s grant of the easements.32
Appeal of Borough and Developers at 16-19 MAP 2016:
- Where a municipality has satisfied the requirement to dispose of condemned property under Section 310(a) of the Eminent Domain Code by abandoning the purpose for which the property was condemned, does the [DDPA] nonetheless require judicial approval before a municipality may dispose of that property?
- Where a municipality intends to abandon property acquired by condemnation and where that intent is coupled with external acts to achieve such abandonment, has the purpose of the property been “abandon[ed]” for purposes of Section 310(a) of the Eminent Domain Code?
Appeal of Objectors at 12-15 MAP 2016 and 20-23 MAP 2016:
- Does the removal of Project 70 Act deed restrictions also remove all public trust interests in dedicated parkland, such that judicial review of the sale of such parkland would no longer be required under the [DDPA]?
- May municipalities convey private development easements over public parkland without first obtaining Orphans’ Court approval under the DDPA?
II. Analysis
Both of the issues raised by the Borough and Developers involve the application of Section 310(a) of the Eminent Domain Code to the question of the Borough‘s right to dispose of the Southern Parcels, because the Borough acquired title to those parcels via condemnation.34 In addition, the lower courts structured their analyses of the applicability of the DDPA to the disposition of those parcels based on their consideration of the interplay of the DDPA and Section 310(a). Our grant of allowance of appeal was likewise predicated on a perceived need to resolve the legal question of whether the Borough was required to obtain orphans’ court approval under the DDPA to sell these parcels, as the lower courts concluded, or whether the Borough had the unfettered right to sell them under Section 310(a). In their briefs to our Court, the parties’ arguments retain that focus. Critically however, after further review, wе conclude that Section 310(a) has no application to this matter.
Section 310(a) was enacted by Act 34 of 2006, Act of May 4, 2006, P.L. 112, No. 34, which repealed, in toto, the prior Eminent Domain Code, Act of June 22, 1964, Sp. Sess., P.L. 84, No. 6 (as amended 26 P.S. §§ 1-101 to 1-903 (repealed)), and created the present Eminent Domain Code, codified at Title 26 of the Pennsylvania Consolidated Statutes,
Title 26 created by Act 34 “shall apply to all condemnations effected on or after the effective date” of the Act, which was September 1, 2006. Act of May 4, 2006, P.L. 112, No. 34, § 6(1) (emphasis added). Thus, the General Assembly unmistakably intended for Act 34 to apply prospectively, only to those condemnations “effected” after September 1, 2006.
As recounted above, the declaration of taking for Southern Parcel UPI 11-4-14.2 was filed by the Borough in 1974, and the declaration of taking for Southern Parcel UPI 11-4-14 was filed by the Borough in 1977. Under the provisions of the Eminent Domain Code of 1964, as revised in 1969, which were applicable during that time period, the filing of a declaration of taking “effected” the condemnation. See 26 P.S. § 1-402 (repealed) (“Condemnation, under the power of condemnation given by law to a condemnor, which shall not be enlarged or diminished hereby, shall be effected only by the filing in court of a declaration of taking, with such security as may be required under section 403(a).” (emphasis supplied) (footnote omitted)).35 Hence, by the explicit terms of the legislation creating the present Eminent Domain Code, the provisions of the current code, including Section 310(a), do not apply to the condemnations of the Southern Parcels since the condemnation of both was effected in the 1970s when the Borough filed their respective declarations of taking. Therefore, the provisions of Section 310(a) have no legal relevance to the Borough‘s right to dispose of these properties.
pealed and supplanted this statute entirely with Section 310(a), which contains similar, but nonetheless distinct, provisions.37 Therefore, it would be jurisprudentially imprudent for us to presently interpret § 1-410 and consider its operation in conjunction with the DDPA, based on the parties’ arguments with respect to Section 310(a). This is particularly so given that the Commonwealth Court and orphans’ court decisions rested entirely on their interpretation and construction of Section 310(a) in conjunction with the DDPA. Furthermore, we have no advocacy from the parties on the prospectivity question, as their arguments solely rest on the assumed applicability of Section 310(a). We therefore find it necessary to remand this matter to the Commonwealth Court for addi-
tional proceedings so that the parties may present arguments to the tribunal on this question, and for it to address, in the first instance, what impact, if any, the resolution of this question has on its prior conclusion that orphans’ court approval was required under the DDPA for the sale of the Southern Parcels, even though they were acquired by the Borough through condemnation.
B. Appeal of Objectors
We turn now to the Objectors’ appeal. Notably, our resolution of this appeal is unaffected by our conclusion that the parties and the Commonwealth Court erroneously applied Section 310(a) of the Eminent
1. The DDPA and the Project 70 Act restrictions38
We begin with the question of whether the General Assembly‘s release of Project 70 Act restrictions on the Northern Parcels precludes the application of the DDPA to the Borough‘s sale of these parcels. Objectors Kim Manufacturing and Stewart Hall (“Kim and Stewart“) argue that the Commonwealth Court in Downingtown II misapplied our Court‘s decision in Erie Golf Course by deeming the DDPA‘s application to be dependent on the manner in which the property is acquired by the political subdivision, thereby disregarding the public purpose for which the property is subsequently dedicated, and the corresponding interest the public acquires because of this dedication. Kim and Stewart contend that the Commonwealth Court improperly considered the Northern Parcels to have been dedicated when they were acquired, in part, with Project 70 Act funds, and Project 70 Act deed restrictions were placed on the properties. Kim and Stewart aver that the imposition of these deed restrictions was distinct from the dedication of the property which involved a series of actions on the part of the Borough over many years, and included the use of federal and state grant monies to
undertake various improvements to the park, as well as the Borough‘s own maintenance activities and enhancements of the park. In Kim and Stewart‘s view, our Court in Erie Golf Course held that the application of the DDPA to the disposition of dedicated public property is dependent on acts of dedication and is not triggered merely by the insertion of Project 70 Act-like restrictions in a deed. Consequently, according to Objectors, the DDPA continues to apply to the Northern Parcels, as they were dedicated to use as a public park, even though the General Assembly removed the formal Project 70 Act restrictions from them.
Kim and Stewart assail what they consider the Commonwealth Court‘s further disregard of our Court‘s holding in Erie Golf Course that purchased properties which are committed to the public trust should not be excluded from the scope of application of the DDPA by Section 3386, which provides that the DDPA does not limit or affect a political subdivision‘s control of public lands it acquires through purchase (or condemnation). Kim and Stewart assert the Commonwealth Court in Downingtown I—a decision that tribunal relied on in Downingtown II for its holding regarding the Northern Parcels—improperly found that their acquisition with Project 70 Act funds, and the legislature‘s subsequent release of Northern Parcel 11-4-13 via the 1999 legislation, were the crucial factors determining their proper disposition. Instead, and again, Kim and Stewart proffer that our Court actually held in Erie Golf Course that it was the dedication of a property, and not the conditions of its original purchase, which were determinative of the DDPA‘s applicability.
Kim and Stewart further argue that the Commonwealth Court “erroneously pitted these laws against each other,” by viewing the Project 70 Act as in conflict with the DDPA and considering the provisions of the Project 70 Act to control over those of the DDPA. Kim and Stewart Brief at 40-41. Instead, Kim and Stewart contend, the two acts can be read consistently so as to give effect to both. Kim and Stewart argue that the Project 70 Act and the DDPA “regulate different aspects of the same
view, the Project 70 Act establishes a contractual relationship between the Commonwealth and municipalities—with respect to properties acquired through those funds—via the deed restrictions which protect the Commonwealth‘s financial investment, and which only it can take legal action to enforce. The DDPA, on the other hand, establishes a process for disposing of properties dedicated to public use, and the public has been granted standing to enforce those public rights. Kim and Stewart, thus, characterize the Commonwealth‘s interest under the Project 70 Act as pertaining only to its financial interests and not to the public trust interests protected by the DDPA.
From Kim and Stewart‘s perspective, the Commonwealth Court‘s decision nullifies the DDPA and turns the Project 70 Act into a tool by which public parks may be sold with no judicial oversight simply because Project 70 Act money was used in their acquisition, even if the amount of such funds was small in comparison to the investment of other public funds in the park by the Commonwealth and the municipality. Kim and Stewart point out this could imperil the 500 municipal parks it estimates have been built throughout the Commonwealth using Project 70 Act funds, and would exclude the judiciary and the public from participation in the disposition process, as the DDPA requires; hence, it “would signal a statewide ‘cash for parks’ opportunity” which would undermine the land preservation goals which the Project 70 Act sought to accomplish. Kim and Stewart Brief at 45.
In their joint brief, Objectors Friends of Kardon Park and Ann Feldman (“Friends“), stress that the Commonwealth Court decision is inconsistent given that the court also found that they had standing to challenge the sale, inasmuch as the Project 70 Act does not grant standing to citizens to challenge removal of Project 70 Act restrictions, whereas the DDPA does grant such standing. Thus, according to Friends, the Commonwealth Court‘s finding that they had standing was based on an implicit conclusion that the DDPA was applicable.39
Friends highlight the fact that Project 70 Act money paid for only one half of the total cost of the acquisition of the Northern Parcels, while the Borough paid for the remaining half, and, subsequent to their acquisition of the parcels, the Borough expended significant monies to improve them. Friends claim that allowing the sale of the Northern Parcels solely on the basis of the legislative release would disregard these years of public investment, and the dedication and public use of the park. Echoing Kim and Stewart‘s contention in this regard, Friends maintain that this would contravene the public purpose for which the original Project 70 Act funds were allocated—the acquisition and preservation of parklands for public use. Relatedly, Friends also aver that the orphans’ court in its initial decision correctly treated the park property as a whole—i.e., as a single integrated park—and contend that allowing some of the park parcels to be sold in a piecemeal fashion would disrupt the park‘s continued use as such.
Friends suggest that deeming the Project 70 Act release to trump the requirements of the DDPA could constitute a violation of the separation of powers doctrine under Article V, Sections 1, 2, and 10 of the Pennsylvania Constitution, inasmuch as it could usurp the judiciary‘s obligation to decide whether the sale of a piece of publicly dedicated property violates the common law public trust doctrine as embodied
construed in pari materia, with effect given to all of the provisions of both statutes.41
The Borough and Developers respond that the decision by the Borough to accept Project 70 Act funds to purchase the Northern Parcels constituted a commitment by the Borough to use that land only for the specified Project 70 Act purposes, in this case recreational use as a public park. Thus, the Borough and Developers argue that the dedication was effected at the time the Northern Parcels were acquired with Project 70 funds and Project 70 Act restrictions, not through any later actions by the Borough or the public. Consequently, they reason, when the legislature authorized their release from Project 70 Act restrictions through the 1999 and 2012 legislation, and removed the restrictive covenant in the deeds, this voided their dedication and permitted their conveyance by the Borough. The Borough and Developers reason that, because
The Borough and Developers aver that there is nothing in the Project 70 Act which requires that land acquired under that act be used solely for parkland purposes, and that
As the issue of the interrelationship between the Project 70 Act and the DDPA involves a question of statutory interpretation, our standard of review is de novo, and our scope of review is plenary. City of Philadelphia v. City of Philadelphia Tax Review Board ex rel. Keystone Health Plan East, Inc., 635 Pa. 108, 132 A.3d 946, 952 (2015). In interpreting the Project 70 Act and the DDPA, we are guided by the principles set forth in the Statutory Construction Act (“SCA“),
The SCA directs that “[e]very statute shall be construed, if possible, to give effect to all of its provisions” and that “[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”
We begin our analysis by noting that there is no provision in the text of either the Project 70 Act or the DDPA which indicates that the General Assembly intended either law to have preeminence over the other in situations such as that presented by the case at bar—i.e., where land which has been acquired by a municipality using Project 70 Act funds to pay one half of the cost of acquisition is then committed to public use by that municipality, improved by the municipality using other public monies, and devoted to continuous public use. Indeed, neither statute speaks directly to this situation. Further, contrary to the findings of the Commonwealth Court and the assertions of the Borough and Developers, the 1999 and 2012 legislative enactments do not, by their explicit terms, confer a general authorization on the Borough to sell the Northern Parcels to Developers. These enactments merely removed Project 70 Act restrictions from these parcels, but the legislation contains no language exempting the Borough from complying with the requirements of the DDPA.42 Conse-
Therefore, consistent with our overarching goal of construing statutes to fulfill the intent of the General Assembly, we are obliged to construe the Project 70 Act and the DDPA in harmony, if possible, so as to give effect to both.43 See, e.g., Commonwealth v. Hansley, 616 Pa. 367, 47 A.3d 1180, 1189 (2012) (construing separate statutes, the Recidivism Risk Reduction Act and the mandatory minimum sentencing provisions of the Crimes Code, in accordance with their plain language and in a manner which gives effect to both statutes); see generally Sutherland, Statutory Construction § 53:1 (7th ed.) (observing that courts have a duty to construe statutes harmoniously where it is reasonable to do so); 73 Am. Jur. 2d Statutes § 159 (“[W]hen two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed legislative intention to the contrary, to regard each as effective.“). This is in accord with the directives of the SCA, which provides that “[s]tatutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things,” and which mandates that “[s]tatutes in pari materia shall be construed together, if possible, as one statute.”
In the case at bar, the relevant provisions of Project 70 Act and the DDPA relate to the same class of things—the disposition of governmentally owned lands used by the public for recreation. Considering both the coextensive scope of the Project 70 Act and the DDPA regarding the rights and duties of political subdivisions to dispose of lands utilized for those purposes, and the distinct, but equally important public interests both of these enactments are intended to further, we conclude they must be read in pari materia. Therefore, we must strive to give effect to the provisions of both statutes.
Under the Project 70 Act, whenever Project 70 Act monies are granted to a municipality for the purposes of acquiring lands for “recreation, conservation and historical purposes,” the deed conveying the property must contain an indenture, i.e., a restrictive covenant specifying that the land is being acquired “for recreation, conservation and historical purposes as said
By contrast with the Project 70 Act, as our Court recognized in Erie Golf Course, the fundamental purpose of the DDPA is to delineate “the fiduciary nature of municipalities’ obligations relative to donated and dedicated properties and provided for orderly relief therefrom in appropriate circumstances.” 992 A.2d at 86. We further discerned that, in enacting the DDPA, the General Assembly incorporated “salient common-law principles” of the “public trust doctrine” as articulated in our caselaw prior to its enactment. Id. Under that doctrine, whenever property was dedicated to public use by a municipality, this action created a trust for the property with the public as the beneficiary. It correspondingly required the municipality to act in the capacity of a trustee by holding the property in favor of the community, and restricted the municipality from diverting it from public use, or conveying it to a private party. Board of Trustees of Philadelphia Museums v. Trustees of University of Pennsylvania, 251 Pa. 115, 96 A. 123, 125 (1915); In re Petition of Acchione, 425 Pa. 23, 227 A.2d 816, 820 (1967) (once land is dedicated to a public use by a municipality, the municipality becomes “trustee, subject to all the duties and responsibilities imposed on any other trustee.“). As we recounted in Philadelphia Museums, the public trust doctrine was developed in order to protect the significant interests the public acquires in such property through their use of it and the expenditures of tax monies for its care and improvement. 96 A. at 125.
All lands or buildings heretofore or hereafter donated to a political subdivision for use as a public facility, or dedicated to the public use or offered for dedication to such use, where no formal record appears as to acceptance by the political division, as a public facility and situate within the bounds of a political subdivisiоn, regardless of whether such dedication occurred before or after the creation or incorporation of the political subdivision, shall be deemed to be held by such political subdivision, as trustee, for the benefit of the public with full legal title in the said trustee.
Although the DDPA does not expressly define what constitutes a “dedication” of property to public use—triggering the requirement of orphans’ court approval for its disposition—we noted in Erie Golf Course that, under our prior decisions involving the common law public trust doctrine, a property is “dedicated” to public use by a municipality whenever the municipality has both committed the property to public use and the public has accepted it
Importantly, as related above, our Court held in Erie Golf Course that property which was initially acquired via purchase by the local government was not excluded from the ambit of the DDPA by
Contrary to the assertion of the Borough and Developers, this natural construction of the DDPA in accordance with its terms does not result in the DDPA applying to all lands that a municipality purchases. For instance, lands the municipality purchases with the intention to put to public use as public facilities, but which are not, subsequently, committed to that public use by the municipality, have not been dedicated, so the protective provisions of the DDPA are not triggered. Likewise, even if a municipality commits lands which it purchases to public use, they may not be accepted by the public for that use, and, again, there is no dedication of such property which implicates the DDPA.
To adopt the Borough and Developers’ suggested contrary construction—that legislative release of Project Act 70 restrictions on property which is dedicated as a public facility, in and of itself, authorizes a municipality‘s sale of such facilities to private developers—would disregard the substantial public interests of the residents of a municipality who have paid, through their local tax dollars, fifty percent of the cost of acquisition of the property, and expended additional amounts of their tax dollars to maintain and develop the property so that they could use it as a public facility. Denying a municipality‘s residents the judicial remedy afforded them under the DDPA would impermissibly favor private interests over the public interest, and thus, we are compelled to reject such a construction.
Accordingly, the requirements of the Project 70 Act and the DDPA do not come into irreconcilable conflict, as the Commonwealth Court concluded, whenever a municipality seeks to sell property acquired in part with Project 70 Act funds, and which is thereafter dedicated to public use as a public facility. Rather, the requirements of both enactments can and, indeed, must be met by the municipality. A municipality that purchases property with Project 70 Act monies, which is thereafter dedicated to a public use as a public facility, must, in order to convey that property, seek the General Assembly‘s release of the Project 70 Act restrictions imposed in the deed of acquisition, and must also seek orphans’ court approval under the DDPA for the conveyance. This effectuates the legislative purpose undergirding both enactments since it ensures that the General Assembly‘s interest in safeguarding the expenditure of Commonwealth funds will be secured when it authorizes the release of Project 70 Act restrictions, as well as protects, through orphans’ court review, the discrete but related substantial interests the public has acquired in such property through the expenditure of their tax dollars to maintain and improve it, and through their use and enjoyment of the property. The DDPA, thus, ensures that public facilities are not sold precipitously, or for purposes that do not serve a true public benefit.
Applying these principles in the case before us, we conclude that the Borough was required to obtain orphans’ court approval under the DDPA before selling the Northern Parcels, despite their release by the legislature from some of the Project 70 Act restrictions. The Northern Parcels are an integral part of Kardon Park, comprising slightly over half of its total area. As the orphans’ court found in its first opinion, and which finding is amply supported by the record, the Borough committed this land, along with the other three parcels which are the subject of this litigation, to public use as a park, expressly via ceremony, and via its actions of expending public monies over the course of two decades to maintain this land for public use and to make permanent improvements thereon. Likewise, the orphans’ court‘s finding that the public accepted this land for this use as a park is equally well supported by the evidence of record. As highlighted by the orphans’ court, and recounted previously in this opinion, this evidence shows that the public has made and continues to make extensive use of the entire park property, which includes these parcels, for a wide panoply of recreational activities.44 Thus, the orphans’ court‘s ultimate conclusion that the Northern Parcels have been dedicated to use as a public facility is supported by the record, and its approval is, therefore, required for their sale under
2. Easements and the DDPA
We now address the Objectors’ contention that the Borough was required to obtain orphans’ court approval under the DDPA to grant to Developers easements conferring on them the right to discharge stormwater into the two ponds on the Meisel Parcel (Second and Third Lakes) and the pond on Northern Parcel
In their brief, Kim and Stewart argue that these easements, although purportedly temporary in nature during construction, will be in effect even after the construction process is complete, and that they would transform the manner in which the remaining parkland will be experienced by its users and will effectively subjugate these public interests to those of the private developer. Specifically, Kim and Stewart note that the installation of a protective wetland barrier between the development and the lakes would reduce park users’ access, and that the relocation of the walking trails would result in users gazing upon a gaggle of buildings rather than meadows and trees. Moreover, Kim and Stewart point out, these easements would ultimately be acquired by the homeоwners association (“HOA“) managing the development and would be enforceable by it. Thus, according to Kim and Stewart, this raises the prospect of a future conflict between the HOA and the public over the use of the remaining parkland, with the HOA objecting to future park improvements on the basis that they interfere with its private easement rights.
Kim and Stewart also emphasize that the Commonwealth Court previously determined that it is the nature of the intrusion onto park property, rather than the degree of the intrusion, which is the dispositive factor as to whether a municipality may permit any portion of parkland to be used for other purposes; hence, to be allowable, any proposed use must fit within the scope of the park‘s fundamental purposes. See Kim and Stewart Brief at 58 (citing, e.g., White v. Township of Upper Saint Clair, 799 A.2d 188 (Pa. Cmwlth. 2002) (county was required to obtain orphans’ court approval pursuant to the DDPA to grant a lease for the erecting of a cell phone tower on a small part of a 200-acre park that it owned, since it was obligated to insure that all of the parkland was used for a recreational, conservation or historical purpose)).
Kim and Stewart offer that, in the present case, the Commonwealth Court had previously acknowledged in its 2013 opinion, In re Council of Borough of Downingtown, see supra note 22, that these easements would constitute an alienation of portions of the park and, thus, orphans’ court approval under the DDPA was needed for their conveyance. Yet, incongruously, the en banc Commonwealth Court in Downingtown II apparently disregarded that conclusion, finding that the DDPA does not apply. Endorsing Judge McCullough‘s dissent in Downingtown II, see supra note 32, Kim and Stewart claim that this creates a new and dangerous precedent which contravenes the principle that public property should not be used for purely private purposes. In Kim and Stewart‘s view, this decision allows parkland to be used “to satisfy the private needs of developers and landowners.” Kim and Stewart Brief at 62.
Friends largely press the same arguments as Kim and Stewart, but also stress that there is no dispute among the parties that the lands across which these easements have been granted are within the scope of the DDPA, and that, prior to Downingtown II, there was no question that any alienation of parkland required judicial approval under that act. While disputing the Commonwealth Court‘s conclusion that these easements would have minimal impact on the public‘s use of the park, Friends contend that the effect of the easements
The Borough and Developers respond that orphans’ court approval was not required under the DDPA because it requires only that dedicated properties held in trust “be used for the purpose or purposes for which they were originally dedicated or donated.” Borough and Developers Brief at 38 (quoting
Upon review, we initially note that the Meisel Parcel, although acquired through donation, has been dedicated by the Borough, in its entirety, for use as a public park, and that it is, therefore, within the scope of the DDPA. Furthermore, we have already determined in our discussion of the previous issue in this appeal that Northern Parcel UPI 40-1-23.1, over which easements have also been granted by the Borough, remains subject to the DDPA, despite the General Assembly‘s release of the Project 70 Act restrictions on that parcel. Thus, under the DDPA, both of these parcels are deemed to be “held by [the Borough], as trustee,” for the benefit of the public.
All such lands and buildings held by a political subdivision as trustee, shall be used for the purpose or purposes for which they were originally dedicated or donated, except insofar as modified by court order pursuant to this act.
Section 3383‘s restriction of a municipality‘s power to unilaterally change the purpose for which property has been dedicated to the public trust is a codification of a bedrock tenet of the common law public trust doctrine, which is that “[a]
It is plain to us that the conveyance of the challenged easements to Developers would allow them to use portions of the dedicated parcels subject to the easements for a private purpose—namely, to effectuate the construction and maintenance of a private housing development—which is distinct from the public purpose for which for that land was dedicated, as a park. Further, it is a well established legal principle that an easement is “an interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose.” Stanton v. Lackawanna Energy, Ltd., 584 Pa. 550, 886 A.2d 667, 678 n.7 (2005). Thus, as the easements would confer on Developers the right to control and use the portions of the parkland subject to the easements, the Borough has ceded to a private party some of the Borough‘s exclusive rights as trustee of that land to manage it for the public‘s benefit, thereby subordinating those public rights to the private rights of the easement holders. For these reasons, we conclude that the Borough was required to seek judicial approval from the orphans’ court under
III. Conclusion
Order of the Commonwealth Court with respect to the disposition of the Southern Parcels is hereby vacated. Orders of the Commonwealth Court regarding the Northern Parcels and the easements across the Meisel Parcel and Northern Parcel UPI 40-1-23.1 are hereby reversed. This case is remanded to the Commonwealth Court for further proceedings in accоrdance with this Opinion. Jurisdiction is relinquished.
Chief Justice Saylor and Justices Baer, Donohue, Dougherty, Wecht and Mundy join the opinion.
Notes
In addition to the purposes stated in article eight, section seven of this Constitution, the Commonwealth may be authorized by law to create debt and to issue bonds to the amount of seventy million dollars ($70,000,000) for the acquisition of land for State parks, reservoirs and other conservation and recreation and historical preservation purposes and for participation by the Commonwealth with political subdivisions in the acquisition of land for parks, reservoirs and other conservation and recreation and historical preservation purposes, subject to such conditions and limitations as the General Assembly may prescribe.
This section provides:
(a) Disposition of property.—If a condemnor has condemned a fee and then abandons the purpose for which the property has been condemned, the condemnor may dispose of it by sale, lease, gift, devise or other transfer with the following restrictions:
(1) If the property is undeveloped or has not been substantially improved, it may not be disposed of within ten years after condemnation without first being offered to the condemnee at the same price paid to the condemnee by the condemnor.
(2) If the property is located outside the corporate boundaries of a county of the first or second class and is undeveloped or has not been substantially improved and was devoted to agricultural use at the time of the condemnation, it may not be disposed of within 21 years after condemnation without first being offered to the condemnee at the same price paid to the condemnee by the condemnor.
This section provides:
§ 1933. Particular controls general
Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.
This section stated in relevant part:
If a condemnor has condemned a fee and thereafter abandons the purpose for which the property has been condemned, the condemnor may dispose of it by sale or otherwise: Provided, however, That if the property has not been substantially improved, it may not be disposed of within three years after condemnation without first being offered to the condemnee at the same price paid to the condemnee by the condemnor... The condemnee shall be served with notice of the offer in the same manner as prescribed for the service of notices in subsection (b) of section 405 of this act, and shall have ninety days after receipt of such notice to make written acceptance thereof. 26 P.S. § 1-410(a) (repealed) (footnote omitted).
Section 310(a) provides:
(a) Disposition of property.—If a condemnor has condemned a fee and then abandons the purpose for which the property has been condemned, the condemnor may dispose of it by sale, lease, gift, devise or other transfer with the following restrictions:
(1) If the property is undeveloped or has not been substantially improved, it may not be disposed of within ten years after condemnation without first being offered to the condemnee at the same price paid to the condemnee by the condemnor.
(2) If the property is located outside the corporate boundaries of a county of the first or second class and is undeveloped or has not been substantially improved and was devoted to agricultural use at the time of the condemnation, it may not be disposed of within 21 years after condemnation without first being offered to the cоndemnee at the same price paid to the condemnee by the condemnor.
(3) If the property is undeveloped or has not been substantially improved and the offers required to be made under paragraphs (1) and (2) have not been accepted, the property shall not be disposed of by any condemnor, acquiring agency or subsequent purchaser for a nonpublic use or purpose within 21 years after condemnation. Upon petition by the condemnor, the court may permit disposal of the property in less than 21 years upon proof by a preponderance of the evidence that a change in circumstances has abrogated the original public purpose for which the property was taken.