Lead Opinion
OPINION
These matters involve the cross-appeals of the Borough of Downingtown and the Council of the Borough of Downingtown (together, the Borough), Progressive Housing Ventures, LLC and J. Loew & Associates, Inc. (together, Developers), Kim Manufacturing Company, Stewart Hall, L.P., Friends of Kardon Park, and Ann Feldman (together, Objectors) from the December 20, 2013 order of the Court of Common Pleas of Chester County, Orphans’ Court Division (trial court) denying the Borough’s request to convey two parcels of property, UPI Nos. 11-4-14 and 11-4-14.2 (hereafter referred to as the Southern Parcels); finding that no approval was required for the Borough to convey another two parcels, UPI Nos. 11-4-13 and 40-1-23.1 (hereafter referred to as the Northern Parcels); and finding that no approval was required for the Borough to grant Developers the proposed easements relating to parcels UPI No. 11-4-23 (hereafter referred to as the Meisel Parcel) and a portion of UPI No. 40-1-23.1, one of the Northern Parcels.
FACTS/PROCEDURAL HISTORY
These matters were before the trial court as a result of separate orders of this Court vacating and remanding previous orders of the trial court denying the Borough’s petition for approval of sale of real property (2012 remand decision) and holding that no Orphans’ Court approval was required for the Borough’s grant of certain easements to Developers (2013 remand decision).
In the 2012 case, the Borough filed a petition with the trial court seeking Orphans’ Court approval to sell several parcels of land commonly referred to as Kar-don Park to Developers. The parcels are located partly in the Borough and partly in East Cain Township (Township). In the 2013 case, the Borough and Developers sought a declaration from the trial court that no Orphans’ Court approval was required for the Borough to grant certain easements to Developers over the Meisel Parcel and a portion of one of the Northern Parcels in conjunction with the development of a neighboring parcel which the Borough had also agreed to sell to Developers. Without these easements, Developers will be unable to develop the neighboring parcel in compliance with the open space and stormwater management requirements of the Township’s zoning ordinance.
The Meisel Parcel was acquired by the Borough by purchase from Kathryn Meisel in 1962. This parcel includes two man-made ponds known as Second and Third
The Northern Parcels were acquired by the Borough in 1968 with Project 70 funds for recreation, conservation, and historical purposes.
The Southern Parcels were acquired by condemnation in 1974 and 1977, respectively, for park and recreation purposes. Both parcels would be developed under the proposed plan.
In the 2012 case, upon learning of the development agreement between the Borough and Developers, Objectors filed suit with the trial court seеking to enjoin the sale. Objectors alleged that the proposed sale violated the common law public trust doctrine
On appeal, this Court, sitting en banc, vacated and remanded the trial court’s decision. With respect to the Northern Parcels acquired with Project 70 Act funds, we remanded to the trial court for consideration of any possible interaction between the Project 70 Act and the DDPA. However, we did note that the General Assembly’s release of UPI No. 11-4-13 permitted its conveyance and that only the Commonwealth, and not private citizens, can initiate proceedings to enforce Project 70 Act restrictions. With respect to the Southern Parcels acquired via condemnation, we remanded for the trial court to make further factual findings regarding how long the Borough held the parcels following their сondemnation and to consider the application of section 310(a) of the Eminent Domain Code (Code), 26 Pa.C.S. § 310(a) (relating to disposition of property after abandonment of the purpose for which the property was condemned), in conjunction with the DDPA. With respect to the Meis-el parcel and parcel UPI No. 40-1-23.1, we remanded for the trial court to determine whether the construction, maintenance, and utility easements, as well as the easement relating to the discharge of stormwa-ter into two lakes, are inconsistent with the use of the parcels as parkland.
Regarding the 2013 case, the Township’s Board of Supervisors had granted Developers conditional use approval for their development, including the aforementioned easements and the use of these easements to satisfy the stormwater management and open’ space requirements of the Township’s zoning ordinance. Objector Feldman appealed to the trial court, which affirmed the Board’s order. On further appeal, this Court reversed, concluding that, since the Borough used Project 70 Act funds to purchase UPI No. 40-1-23.1, the Borough must first obtain approval from the General Assembly to convey an encumbrance to Developers in accordance with section
While these appeals were pending, however, the Borough and Developers filed their petition with the trial court seeking a declaration that the Borough was not required to obtain .Orphans’ Court approval for the grant of thе construction and stormwater easements. Objectors Feld-man and Friends of Kardon Park intervened in the action. The trial court ultimately issued an order granting the joint petition filed by the Borough and Developers, concluding that Orphans’ Court approval was not required and .that the DDPA was not implicated. The trial court explained that the property equitably owned by Developers had not been donated or dedicated for public use and that the Orphans’ Court’s jurisdiction only extends to a municipality’s decision to sell or disr continue use of such property. More importantly, the trial court held that, the Borough’s grant of the requested easements did not constitute a sale or a change in use of the property.
On appeal, a panel of this Court vacated and remanded the trial court’s decision. We noted that while the property equitably owned by Developers had not been donated or dedicated for the public use, the parcels subject to the easements were part of the dedicated and publicly-used Kardon Park. We further noted that, at the very least, the proposed easements with respect to these parcels will alter the use, or constitute an alienation of, portions of Kardon Park, thereby implicating the DDPA and necessitating Orphans’ Court approval. Thus, we remanded for the trial court to make further findings and conclusions with respect to the application of the DDPA.
The trial court consolidated the cases on remand, held further hearings, and issued аn order dated December 20, 2013, denying the Borough’s request to convey the Southern Parcels acquired by condemnation, holding that no Orphans’ Court approval was required for the Borough to convey the Northern Parcels acquired with Project 70 Act funds, and holding that no Orphans’ Court approval was required for the' Borough to grant the proposed easements.
In an accompanying opinion, the trial court reiterated its previous holding that the DDPA applied to the Southern Parcels since both parcels constitute “fully-realized dedications” for “parkland purposes,” (Trial court op. at 5, 7), that the Borough failed to meet its burden under section 4 of the DDPA, 53 P.S. § 3384, to show that “the continuation of the original use ... is no longer practicable or possible or has ceased to serve the public interest,” and that no section of the Code exempts these parcels from the applicability of the DDPA-. The trial court rejected an argument from the Borough that section 6 of the DDPA, 53 P.S. § 3386, exempted these parcels. Section 6 of the DDPA states that “[njothing 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.” Despite this language, the trial court cited the following discussion from our Supreme Court in In re Erie Golf Course,
As to Section 6, we have observed that the statute is ambiguous and potentially paradoxical. Further, we differ with the notion (which is at least implicit in the Commonwealth Court dissent) that a bright line separates dedications and*733 purchases, since, under the governing principles, purchased property can be committed to the public trust. Given the overlap, we find it most reasonable to construe Section 6 as redressing a concern for the preservation of such rights and interests as a political subdivision may have acquired in connection with a purchase. We do not believe, however, that the provision was intended to remove entirely from the Act’s purview (and thus maintain inflexible ir-revocability relative to) any and all trust property that may in any sense of the word be said to have been purchased.
Id. at 88 (citations omitted). The trial court noted that the court in Erie .Golf Course refused to read section 6 as eliminating purchased property from the scope of the DDPA and surmised that the Court’s reasoning applies equally to property acquired by condemnation.
Regarding the Northern Parcels, the trial court concluded that the 1999 and 2012 releases from the General Assembly allowed the Borough to convey these parcels without Orphans’ Court approval.
Regarding the Meisel parcel, the trial court found that the proposed easements were not inconsistent with the use of this parcel as parkland and, therefore, the DDPA was not implicated and no Orphans’ Court approval was required with respect to the grant of these easements. The trial court cited testimony from the 2013 hearings which established that the Second and Third Lakes on this parcel already receive stormwater runoff from the areas of Kardon Park which would be developed and that the runoff would not affect the current recreational uses of these lakes.
The Southern Parcels
In their appeal, the Borough and Developers argue that the trial court erred as a matter of law in concluding that the DDPA, rather than section 310(a) of the Code, controls the Borough’s disposition of the Southern Parcels which were acquired by condemnation. We disagree.
We begin with a review of the relevant statutory provisions. Section 310(a) of the Code provides as follows:
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 disposеd 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 con-demnee 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.
26 Pa.C.S. § 310(a) (emphasis added).
Section 2 of the DDPA states as follows: 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 acсeptance by the political division, as a public facility and situate .within the bounds of a political subdivision, 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.
53 P.S. § 3382 (emphasis added). Section 3 of the DDPA provides that “[a]ll 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.” 53 P.S. § 3383.
Section 4 of the DDPA provides that:
When, in the opinion of the political subdivision which is the trustee, the*735 continuation of the original use of the particular property held in trust as a public facility is no longer practicable or possible and has ceased to serve the public interest, or where the political subdivision, as trustee for the benefit of the public, is in doubt as to the effectiveness or the validity of an apparent dedication because of the lack of a record of the acceptance of the dedicated land or buildings, the trustee may apply to the orphans’ court of the county in which it is located for appropriate relief. The court may permit the trustee to—
(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 рurposes.
(2) If other property is not available, sell the property and apply the proceeds to cany 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 the proceeds therefrom in the case of a sale to a different public purpose.
(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 use or otherwise, the court shall also determine the consideration, if any, to be paid to the political subdivision.
53 P.S. § 3384 (emphasis added). Section 4(4) requires that all terms in the first paragraph be met, specifically that continuation of the original use of the property is no longer practicable or possible and has ceased to serve the public interest. There was no showing here that the continued use was no longer practicable or possible or that Kardon Park ceased to serve the public interest. This is required by the clear statutory language.
In order to consider disposing of the property, the requirements of section 4 must be met even before referring to section 6 of the DDPA. The Borough does not reach application of section 6 оtherwise. While section 6 states that “[njothing 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,” 53 P.S. § 3386, the Borough did not first meet the requirements of section 4 of the DDPA. Nevertheless, as noted above, our Supreme Court in Erie Golf Course refused to read section 6 as eliminating purchased property from the scope of the DDPA.
We believe that the trial court properly extended the reasoning of Erie Golf Course to property acquired by condemnation. In Erie Golf Course, lands known as the Erie Golf Course were conveyed to the City of Erie by a private developer in 1926 for nominal consideration of $1.00 and assumption of a $15,000.00 mortgage. The deed included a restrictive covenant, consistent with an authorizing ordinance, memorializing the City’s commitment to preserve the property, indefinitely, as a golf course and/or for park purposes. The City acted consistent with this covenant until 2006, at which time it permanently closed the golf course and authorized advertisements for the sale of the property.
The City filed a petition seeking relief under the DDPA, alleging that the original purposes were no longer practical and that the property had ceased to serve the public interest. The trial court permitted the Lake Region Conservancy and the Committee to Keep Erie Golf Course Open to
On further appeal, the Supreme Court vacated our decision and remanded for further proceedings. The court held that the DDPA applied to fully-realized dedications as well as dedications where there may be uncertainty as to acceptance, noting that the DDPA incorporated “salient common-law principles” and that, “to the extent that the [DDPA] modifies the public trust doctrine, the prior common-law principles are. superseded.” Erie Golf Course,
Regarding the DDPA, the Supreme Court identified section 6 as “ambiguous and potentially paradoxical,” id. at 88, noting that preexisting law, namely the public trust doctrine, was more restrictive than the DDPA with respect to the alienability of purchased property dedicated to public use. The court described section 6 as' “redressing a concern for the preservation of such rights and interests as a political subdivision may have acquired in connection with a purchase.” Id. However, the court did not believe “that the provision 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.” Id.
In other words, the court in Erie Golf Course declined to read section 6 as eliminating pm-chased property from the scope of the DDPA. In the case sub judicé, it would be illogical to conclude that the same reasoning would not apply to property acquired by condemnation. Moreover, the court in Erie Golf Course specifically held that the DDPA applied to “fully-realized dedications, as well as to opes where there may be uncertainty as to the acceptance.” Id. at 89. A property is considered dedicated “upon a municipality’s commitment of the property to public use and acceptance by the public.” Id. at 86.
The record establishes that the Borough has committed the Southern Parcels tо public use and the public has accepted this use. For example, the declaration of taking for each of the Southern Parcels reveals that the purpose of the Borough’s condemnation was to “expand and enlarge recreation places and space within the borough limits.” (R.R. at 1146a, 1153a.) Additionally, the Southern Parcels were part of a formal dedication ceremony on October 1, 1978, which included the Borough’s mayor, the Borough manager, and mem
With respect to section 310(a) of the Code, the very terms of that section reflect that it only allows the disposition of condemned property by “sale, lease, gift, devise or other transfer” where a condemnor “abandons the purpose for which the property has been condemned.” 26 Pa.C.S. § 310(a). In this case, the condemnor, the Borough, stated that the purpose of the condemnation was to “expand and 'enlarge recreation places and space within the borough limits.” (R.R. at 1146a, 1153a.) As noted above, the Borough achieved that purpose and Kardon Park continues to satisfy that purpose in the present day. In this regard, we note our agreement with Objectors’ interpretation of section 310(a) as applying only to the sale of condemned land for which the public purpose has been abandoned and, hence, a dedication has not been realized. Since the Southern Parcels continue to be used as public parkland, their purpose has not been abandoned and the trial court properly held that the DDPA, rather than section 310(a) of the Code, applied to the Borough’s conveyance of the Southern Parcels.
Objectors’ Appeal
The Northern Parcels
Objectors first argue that the trial court erred as a matter of law in concluding that the DDPA did not apply to the Borough’s disposition of the Northern Parcels in light of the General Assembly’s releases of these parcels from the Project 70 Act restrictions. We disagree.
Article 8, section 15 of the Pennsylvania Constitution authorized the Commonwealth “to create debt and to issue bonds ... for participation by the Commonwealth with political subdivisions for the acquisition of land for parks, reservoirs and other conservation and recreation and historical preservation purposes.”
In accordance with section 20(b) of the Project 70 Act, the Borough obtained releases of the Northern Parcels in 1999 and 2012. As noted above, the 1999 release removed the deed restriction with respect to UPI No. 11-4-13 and the 2012 release removed the deed restriction with respect to UPI No. 40-1-23.1. The 2012 release further authorized the sale of this parcel and directed how the proceeds of the sale should be deposited. This Court previously concluded, in our 2012 remand decision, that neither the public trust doctrine nor the DDPA precluded the sale of UPI No. 11-4-13 given the 1999 release.
Further, such a result comports with the elements of statutory construction. It is a fundamental tenet of statutory construction that “[statutes 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 “[statutes in pari materia shall be construed together, if possible, as one statute.” Section 1932 of the Statutory Construction Act of 1972 (Statutory Construction Act), 1 Pa. C.S. § 1932. However, if the statutes cannot be construed together, then section 1933 of the Statutory Construction Act, 1 Pa.C.S. § 1933, provides that the more specific statute’prevails. In this case, the Project 70 Act was enacted subsequent to the DDPA and applied to a very specific type of property, i.e., property purchased with Project 70 Act funds. Hence, the provisions of the Project 70 Act must control the disposition of these parcels.
Moreover, we note that Objectors’ reliance on White v. Township of Upper St. Clair,
Standing
The trial court determined that Objectors lacked standing to contest the conveyance of these parcels. We disagree. Section 20(e) of the Project 70 Act provides that “[t]he Commonwealth of Pennsylvania may specifically enforce the provisions of this requirement by application to a court of equity or may invoke other remedies deemed appropriate under the circumstances.” 72 P.S. § 3946.20(e). We have interpreted this provision to mean that only the Commonwealth, and not private citizens, has the authority to enforce the restrictions relating to the use of parcels purchased with Project 70 Act funds.
We noted that the DDPA did not specify what persons may enforce the political subdivision’s duty in this regard and ultimately held that residents of the Township of Upper St. Clair had standing to enforce this duty. However, we noted that section 20(e) of the Project 70 Act identified the Commonwealth as the only party that may enforce the duties under that Act and that we had interpreted section 20(e) as precluding private persons from initiating proceedings under that Act. Significantly, this case is not about enforcement of the Project 70 Act restrictions. The General Assembly has released the Northern Parcels from these restrictions and Objectors are challenging the conveyance of these parcels subsequent to their release. Hence, our reasoning in White supports a finding of standing herein, as does this Court’s opinion in Pilchesky v. Redevelopment Authority of the City of Scranton,
In Pilchesky, this Court reversed a common pleas court’s grant of preliminary objections of the Redevelopment Authority of the City of Scranton (Authority) in the nature of a demurrer on the basis that Joseph Pilchesky lacked standing. Pilche-sky had filed a complaint in the nature of a declaratory judgment action against the Authority alleging that the transfer of the South Side Sports Complex (Complex) to the University of Scranton was illegal. This Complex had been developed with Project 70 Act funds and had been accеpted and dedicated to sports and recreation for public use in 1977. In July 2003, the Authority and the University reached a memorandum of understanding on the terms of the sale of the Complex. In December 2003, the General Assembly formally removed the Project 70 Act restrictions. Despite this release, Pilchesky alleged in his complaint that the sale of the Complex was still subject to the public trust doctrine. The trial court concluded that Pilchesky lacked standing based on his status as a taxpayer and dismissed the complaint.
On appeal, this Court reversed, concluding that Pilchesky had standing as a resident and taxpayer to pursue the claim that the sale of the Complex was inconsistent with the terms of its dedication to public use. We rejected the common pleas court’s finding that Pilchesky failed to meet the first requirement for achieving taxpayer status, i.e., that the governmental action would otherwise go unchallenged. While a prior action had challenged the sale of the Complex, we noted that the prior action did not involve an issue of standing or the public trust doctrine. Rather, the prior action involved an alleged violation of the DDPA, the Authority’s purported lack of power to sell or convey the Complex, and the Authority’s purported failure to follow its own procedures for such a sale. Furthermore, we noted that “the standing analysis is different in cases where citizens seek to protect a park, a town square or other land dedicated to a particular public purpose from degradаtion or intrusion by an inconsistent public 'or private use.” Id. at 765 (citing White,
Additionally, Objectors specifically assert standing under the private attorney general’s doctrine. Standing is conferred under this doctrine “where one party who may not carry a substantial, direct or immediate interest in the subject matter of the litigation ... shares a common interest with citizens or taxpayers in general ... and the only challenge to the action in question would derive from that taxpayer’s intervention.” Society Created to Reduce Urban Blight (SCRUB) v. Zoning Board of Adjustment of the City of Philadelphia,
While the record.reflects limited participation by counsel for the Office of Attorney General (OAG) (i.e., counsel was present during the hearings and conferences, submitted briefs on the issues, and cross-examined witnesses during the 2009 hearings), as the OAG notes in its brief, it quickly determined that “active participation” in this case “was not essential” given the fact that “both sides were well represented and could be counted on to develop a complete record and raise all relevant factual and legal issues” before the trial court. (OAG Brief at 18.) Thus, the OAG chose not to present any evidence given the depth of legal representation in this case. In so doing, it essentially conferred standing on Objectors.
In any event, neither the Borough nor Developers raised any objection to Objectors’ standing during the course of the proceedings before the trial court. Rather, Objectors fully presented their case, including witnesses and evidence, and actively participated in the cross-examination of the witnesses presented on behalf of the Borough and Developers. The trial court merely addressed the issue of standing as an alternative issue and in an effort to avoid any further remand proceedings in the event that we disagreed with its statutory analysis. Nevertheless, in light of the above, the trial court erred in concluding that Objectors lacked standing to contest the conveyance of the Northern Parcels.
The Easements — Meisel Parcel and Northern Parcel UPI No. 40-1-23.1
Objectors also argue that the trial court erred as a matter of law in concluding that the Borough did not need Orphan’s Court approval of the proposed easements for utility, storm water and open space requirement needed for an off-site residential development because a grant of those easements did not constitute a sale or change in the use of the property and was not inconsistent with the use of the relevant parcels as parkland.
Section 3 of the DDPA, 53 P.S. § 3383, provides “[a]ll 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.... ” After considering all of the evidence, the trial court found that none of the easements would impede the public’s use of the property as parkland, including
■Neither the utility or storm water easements in any way impede with the use of Kardon Park because the construction easements are temporary; the maintenance easements allow access and are not intrusive; and the utility easements are underground. As to the storm water easements, those easements may well require changes in Kardon Park, but none of those changes are inconsistent with the use of the property as a park. While there may be a reduced shoreline at the Fourth Lake, there are new vegetative wetlands that serve a park purpose; while part of the Lions Trail will be relocated, there will still be a trail; and while there will be new parking areas, they will allow individuals to.access Kardon Park. Nothing requires that the property be used in the way Objectors believe Kardon Park should be used, just that it be used as a park.
As to the use of portion of parkland to satisfy an open space requirement, while that may be problematic in the land use sense, the matter before us is whether the use of the open space will substantially impede the public’s use of the property as a park in violation of the DDPA. There is nothing to indicate that allowing Developer to use the property to satisfy the open space requirement for the adjoining residential development will have any impact whatsoever on the park use.
Because the grant of the easements does not interfere with the public use of the land as parkland, we also affirm the trial court as to this issue.
Conclusion
Accordingly, because the Southern Parcels continue to be used as public parkland, we affirm the trial court’s order insofar as it held that the DDPA, rather than section 310(a) of the .Code, controls the Borough’s disposition of these parcels. Additionally, given the General Assembly’s releases of the Northern Parcels from the Project 70 Act restrictions, we affirm the trial court’s order holding that the DDPA did not apply to the Borough’s disposition of these parcels. However, given our prior opinions in White and Pilchesky, we reverse the trial court’s order insofar as it held that Objectors lacked standing to contest the conveyance of the Northern Parcels. Further, because the grant of the easements does not interfere will the public use of the land as park land, we affirm the trial court’s order holding that the DDPA was not implicated, and Orphans’ Court approval was not required, for the grant of the easements related to the Meisel parcel and a pоrtion of parcel UPI No. 40-1-23.1.
Judge BERNARD L. McGINLEY dissents,
ORDER
AND NOW, this 29th day of April, 2015, the December 20, 2013, order of the Court of Common Pleas of Chester County (trial court), insofar as it relates to the Northern Parcels, the Southern Parcels, and the eásements on the Meisel parcel and UPI No. 40-1-23.1, is affirmed. The order of the trial court, insofar as it denies Kim Manufacturing Company, Stewart Hall, L.P., Friends of Kardon Park, and Ann Feldman standing to contest the conveyance of the Northern Parcels, is reversed.
Notes
. The 2012 case was an en banc opinion reported at Borough of Downingtown v. Friends of Kardon Park,
. Project 70 refers to the Project 70 Land Acquisition and Borrowing Act (Project 70 Act), Act of June 22, 1964, Special Sess., P.L. 131, as amended, 72 P.S. §§ 3946.1-3946.22. Section 2(4) of the Project 70 Act authorized the Commonwealth to incur debt to assist political subdivisions with the acquisition of land for recreation, conservation, and histori- - cal purposes. 72 P.S. § 3946.2(4). Section 20(b) of the Project 70 Act also restricted the political subdivisions from disposing of or using these lands for any other purposes without the approval of the General Assembly. 72 P.S. § 3946.20(b).
. The 1999 release provides, in pertinent part, that "the General Assembly hereby authorizes the release of Project 70 restrictions from the lands described in section 2,” i.e., UPI No. 11-4-13. (R.R. at 1159a.) The 2012 release states that "the General Assembly hereby approves the release of Project 70 restrictions from the land owned by the Borough of Downingtown ...,” i.e., UPI No. 401-23.1. (R.R. at 2982a.) This release goes on to state that "[t]he proceeds of the sale of the land and the release of the Project 70 restrictions shall be deposited into an interest-bearing account established by the Borough of Downingtown and designated solely for the purposes of the conditions under this subsection,” with the conditions including "improvements to Kardon Park in accordance with a development plan,” and the Borough retaining and maintaining at least twenty acres of public parkland. Id.
.“Under the common law public trust doctrine, when land has been dedicated and accepted for public use, a political subdivision is estopped from interfering with or revoking the grant at least so long as the land continues to be used, in good faith, for the purpose for which it was originally dedicated.” In re
. Act of December 15, 1959, P.L. 1772, as amended, 53 P.S. §§ 3381-3386.
. The Commonwealth of Pennsylvania, Office of Attorney General (the Commonwealth) entered an appearance as parens patriae but took no position regarding the Borough’s petition. Counsel for the Commonwealth did briefly question several witnesses on cross-examination over the course of these hearings.
. Section 4 of the DDPA provides that the municipality may seek the approval of the Orphans’ Court to sell a "particular property held in trust as a public facility” when the "continuation of the original use ... is no longer practicable or possible or has ceased to serve the public interest....” 53 P.S. § 3384.
.The trial court rejected the Borough’s argument that past use of certain parts of Kardon Park as a landfill resulted in contamination at the site, which the Borough could not afford to remediate and which rendered the parkland use of the property no longer practicable or possible.
. Feldman v. Board of Supervisors of East Cain Township,
.Alternatively, should this Court conclude that section 301(a) of the Code was applicable, the trial court found that the Borough has owned the Southern Parcels for more than 21 years, that the Borough abandoned the purpose of parkland use of the parcels (citing the rezoning of Kardon Park from park use to commercial use as early as 1999 and the agreements of sale with the Developers), and that Objectors lacked standing to contest the conveyance under the Code. The trial court further rejected an argument from Objectors Feldman and Friends of Kardon Park that they have standing under the theory of "private attorney general.” In this regard, the trial court noted that counsel for the Office of Attorney General was present during all of the hearings and'conferences and submitted briefs and the fact that it chose not to present evidence does not mean the Commonwealth abdicated its role as parens patriae.
. While not specifically stated, the trial court appears to have concluded that the 2012 release of UPI No. 40-1-23.1 also permitted the grant of the proposed easements without Orphans’ Court approval. However, the 2012 release made no mention of these easements.
. At these hearings, the Borough and Developers presented the testimony of Dennis Glac-kin, a licensed professional land planner, and Victor Kelly, a licensed professional engineer. Both Glackin and Kelly testified that that the proposed easements will not alter the current use of the property as parkland or the current recreational uses of the lakes on the property.
. On appeal from an order of an orphans’ court, this Court's scope of review is limited to determining whether the record is free from legal error and whether the orphans'
. Based upon this determination, we need not address the trial court’s alternative findings regarding Objectors’ standing under the Code or the private attorney general’s doctrine. Indeed, section 5 of the DDPA provides that:
In all proceedings under this act, the political subdivision shall give at least ten days’ notice of the filing of its petition to the Attorney General who may become a party thereto and shall give notice to the public of the proposed date of the hearing, by publication, once a week for three successive weeks in the official legal journal of the county and in a newspaper of general circulation in the municipality, if there be one, or, if not, in a newspaper of general circulation in the county. Any resident of the political subdivision or any group or organization of residents of the political subdivision shall have the right to file a protest and, in the discretion of the court, shall be entitled to be heard in person or by counsel or to intervene in such action and to be a party thereto.
53 P.S. § 3385 (emphasis added).
. Article 8, section 15 of the Pennsylvania Constitution is entitled “Project ‘70’ ” and states, in pertinent part:
[Tjhe Commonwealth may be authorized by law to create debt and to issue bonds in the amount of seventy million dollars ($70,000,-000) ... for participation by the Commonwealth with political subdivisions in the acquisition of land for parks, reservoirs and*738 other conservation and recreation and historical preservation purposes, subject to such conditions and limitations as the General Assembly may prescribe.
Pa. Const, art. VIII, § 15.
. Specifically, section 2 of the Project 70 Act states:
It is hereby determined and declared as a matter of legislative finding that:
(1) Fundamental to the welfare of the people of Pennsylvania are the soil and water resources of the State.
(2) Private development of public and private lands for recreational purposes should be encouraged.
(3) The provision of lands for public recreation and the conservation of natural and historical resources promotes the public health, prosperity and general welfare.
(4) The rapid growth of population in Pennsylvania’s urban and suburban areas requires the acquisition of lands for recreation, conservation and historical purposes before such lands are lost forever to urban development or become prohibitively expensive.
(5) The Commonwealth of Pennsylvania must act to acquire and to assist local governments to acquire lands that are available and appropriate for such purposes so that thеy and the lands previously dedicated to recreation, conservation and historical use may be so preserved.
(6) The acquisition of such lands by the Commonwealth is necessary in those counties where public ownership of land for recreation purposes is less than ten per cent of the total land area or where there is an urban area of more than twenty-five thousand persons.
(7) The Commonwealth of Pennsylvania should utilize available Federal programs in order to augment the funds made available under the provisions of this act.
(8) It is the sense of this legislation that acquisition hereunder shall cause a minimum of hardship to the industry and economy of the Commonwealth of Pennsylvania.
(9)Exploration for, development, storage and transportation of oil and gas, when properly conducted, are fully compatible with uses of publicly owned land for recreation, conservation and historical purposes.
72 P.S. § 3946.2. Consistent with the constitutional authority discussed above, section 4(b) of the Project 70 Act provides that "the Governor, Auditor General and State Treasurer are hereby authorized and directed to borrow, from time to time, on the credit of the Commonwealth and subject to the conditions and limitations of this act, money not exceeding in the aggregate the sum of seventy million dollars ($70,000,000), as may be found necessary to carry out the purposes of the aforesaid amendment, and statutes passed in conformity therewith.” 72 P.S. § 3946.4(b). Additionally, section 17(d) provides that political subdivisions may acquire land for such purposes ”[b]y purchase agreement or by eminent domain proceedings in the manner provided by- applicable provisions of law which may govern land acquisitions for such purposes by such political subdivision....” 72 P.S. § 3946.17(d).
. Specifically, sections 20(b) and (c) provide as follows:
(b) No lands acquired with funds made available under this act shall be disposed of or used for purposes other than those prescribed in this act without the express approval of the General Assembly: Provided, That ... a political subdivision, as owner of such lands, may issue permits, licenses or leases for the exploration, development, storage and removal of oil, gas or other minerals, or for the installation and use of water, gas, electric, telephone, telegraph, oil or oil products lines, under reasonable regulations prescribed by such owner consistent with the primary use of such lands for "recreation, conservation and historical purposes.”
(c) The deeds of all lands acquired under the provisions of this act shall contain the following clause:
*739 This indenture is given to provide land for recreation, conservation and historical purposes, as said purposes are defined in [the Project 70 Act].
72 P.S. § 3946.20(b), (c).
. Specifically, we held that "the public trust doctrine does not preclude the sale of parcel UPI 11-4-13 to Developers because, although this parcel was purchased with Act 70 funds, the General Assembly’s subsequent enactment of Act 29 of 1999 permitted its conveyance.” Borough of Downingtown,
. As noted above, while a portion of this parcel would be conveyed to Developers, the remainder would be retained by the Borough as public parkland. Indeed, the 2012 release required the Borough to maintain at least twenty acres of public parkland. This requirement of maintaining public parkland constitutes a reaffirmation that such portion of UPI No. 40-1-23.1 remains dedicated for that public purpose, and, hence, falls within the purview of the DDPA.
. In White, the Township of Upper St. Clair negotiated a lease with Crown Communications for a portion of the public park upon which it would construct a communications tower. This tower would be 350 feet high and replace an existing 180-foot communications tower which was built in 1992 and provided the Township of Upper St. Clair with certain emergency communications support. The lease included .428 acres of the approximately 200 acres that make up the public park. As part of its lease, Crown Communications agreed to provide the Township of Upper St. Clair with an upgraded public communications system for 911, police, fire, and emergency medical services, and to pay an annual rent of $2,500.00.
Subsequent to the construction of the tower, several local residents filed a complaint with the common pleas court seeking declaratory аnd injunctive relief to have the lease declared null and void and the tower removed. The Township of Upper St. Clair and Crown Communications filed preliminary objections alleging that residents lacked standing, that residents failed to state a cause of action, and that the common pleas court lacked subject matter jurisdiction. The common pleas court sustained the preliminary objections and dismissed the complaint. The common pleas court concluded, inter alia, that the residents lacked standing. On appeal, this Court reversed, holding that the residents had standing to pursue a claim that the Township failed to uphold the terms of the dedication of the public park. In so holding, we noted that a political- subdivision’s obligation to uphold a public dedication is "absolute, not discretionary,” and that it "lacks authority to assent to the use of public land for any purpose even a public purpose other than the intended purpose.” Id. at 195. We recognized in White that "[t]he standing analysis is different in cases where citizens seek to protect a park, a town square or other land dedicated to a particular public purpose from degradation or intrusion by an inconsistent public or private use.” Id. at 193.
. In its brief, the Commonwealth agrees with the trial court that Objectors lack statutory standing under the Project 70 Act, but would concede that Objector Feldman would be able to assert common-law standing in that she would be aggrieved inasmuch as she resides in the Borough immediately adjacent to one of the parcels at issue and stands to be directly affected by the proposed sale and development of Kardon Park.
Concurrence in Part
CONCURRING AND DISSENTING OPINION BY
I join Majority disposition regarding the Northern Parcels and regarding proposed easements on the Meisel Parcel and Northern Parcel UPI No. 40-1-23.1. How
The practical issue regarding the Southern Parcels is whether the Borough of Downingtown can sell the Parcels under Section 310(a) of the Eminent Domain Code, 26 Pa.C.S. § 310(a), or whether the orphan’s court must approve the sale under the Donated or Dedicated Property Act (DDPA).
The question of who should be the decision maker here would seem to be easily answered. This is because Section 6 of the DDPA, 53 P.S. § 3386, provides (with emphasis added): “Nothing in this act shall be construed to limit or effect the control by a political subdivision of public lands or buildings acquired by such political subdivision by purchase or condemnation.” If this clear language is given effect, the condemning municipality will be the decision makеr.
The same conclusion is reached by applying an analytical process the Supreme Court uses to determine which entity the legislature intended to have preeminent powers over a given area of regulation. This process was originally set forth in Commonwealth v. Ogontz Area Neighbors Association,
Here, based on the language of Section 6 of the DDPA, the General Assembly expressed that the political subdivision owning lands acquired by condemnation should prevail over the decision maker under the DDPA. Thus, consistent with the Supreme Court’s line of cases starting with Ogontz, the condemning municipality under the Eminent Domain Code should be the decision maker in the first instance for property acquired by condemnation.
The trial court, however, disregarded the quoted language of Section 6 of the DDPA. Relying on the Supreme Court’s decision in Erie Golf Course, the trial court effectively held that Section 6 of the DDPA is not operative. This was error.
The Court in Erie Golf Course examined the DDPA. The Court noted that there was ambiguity as to the term “purchase” as used in Section 6 of the DDPA. Erie Golf Course,
Thus, the Supreme Court in Erie Golf Course modified the application of Section 6 to purchased property in an effort to protect a municipality’s discretion. The Court did not discuss property acquired by condemnation.
The trial court here expanded the Supreme Court’s Erie, Golf Course holding to also modify the application of Section 6 to property acquired by condemnation. It did so, however not to protect the municipality’s discretion; instead, the trial court sought to limit the municipality’s discretion. I see nothing in the Supreme Court’s discussion of Section 6 of the DDPA which would support such an outcome.
There are other reasons why the holding in Erie Golf Course does not compel the result reached by the trial court. First, unlike property acquired by “purchase,” there is no ambiguity about what property is acquired by condemnation. Also, there is no conflict between the apparent intent of Section 6 to protect a municipality’s rights in property acquired by condemnation and a municipality’s rights to dispose of such property in accordance with Section 310(a) of the Eminent Domain Code.
For all these reasons, I would apply Section 6 of the DDPA as written to property acquired by condemnation. Thus, I would conclude that the DDPA does not apply to such property and that the Borough may dispose of the Southern Parcels acquired by condemnation if it proves that Section 310(a) of the Eminent Domain Code applies.
As alternative findings, the trial court specifically determined that: (a) the Borough owned the Southern Parcels for more than 21 years; and (b) the Borough abandoned the purpose of parkland use of the condemned parcels. Tr. Ct. Slip Op. at 7-8. Given these findings, I would hold that the Borough may dispose of the Southern Parcels pursuant to Section 310(a) of the Eminent Domain Code without approval of the orphan’s court. Thus, I would reverse the respected trial court on this issue.
Judge BERNARD L. McGINLEY joins in this concurring and dissenting opinion.
. Act of December 15, 1959, P.L. 1772, as amended, 53 P.S. §§ 3381-3386.
Concurrence in Part
Concurring and Dissenting OPINION BY
I join the Majority opinion insofar as it affirms the decision of the Court of Common Pleas of Chester County, Orphans’ Court Division (trial court), concluding that the Donated or Dedicated Property Act (DDPA)
However, I respectfully dissent to the Majority’s opinion insofar as it affirms the trial court’s decision concluding that the Borough was not required to obtain Orphans’ Court approval for the grant of the proposed easements to Progressive Housing Ventures, LLC and J. Loew & Associates, Inc. (together, Developers). Here, Developers sought various construction, maintenance, and utility easements as well as a permanent easement to discharge stormwater into an existing man-made pond on UPI No. 40-Í-2S.1, one of the two Northern Parcels, known as Fourth Lake. Developers needed these easements to satisfy the open space and stormwater management requirements of the Township’s zoning ordinance. The trial court found that Orphans’ Court approval was not required for these proposed easements and the DDPA was not implicated because the grant of these easements did not constitute a sale or change in the use of the property. The Majority agrees with the trial court, concluding that the grant of the easements would not interfere with the public use of the land as parkland. I respectfully disagree.
While the Majority accepts the assertion by the Borough and Developers that portions of Kardon Park will continue to be used as public parkland, I believe this assertion is a red herring. It conflicts with this Court’s precedent that a township’s obligation to uphold a dedication is absolute, not discretionary. See White v. Township of Upper St. Clair,
Section 3 of the DDPA requires that “[a]ll 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.” 53 P.S. § 3383. Additionally, in White, we held that, “under Pennsylvania law, the [t]ownship’s obligation to uphold the [public] dedication is absolute, not discretionary. A political subdivision lacks authority to assent to the use of public land for any purpose even a public purpose other than the intended purpose, no matter how exigent the circumstances.” Id. at 195 (emphasis added). We relied оn our Supreme Court’s holding in Hoffman v. City of Pittsburgh,
The applicable principle of law is well stated in 3 Dillon, Municipal Corporations, 5th Ed., Sec. 1102: ‘A municipal corporation has no implied or incidental authority to alien, or to dispose of for its own benefit, property dedicated to or held by in trust for the public use or to extinguish the public uses in such property, nor is such property ...*747 or the proceeds of sale thereof available for the payment of the debts of the municipality.’.
This has been the law of Pennsylvania for over a century.[3]
(Footnotes and citations omitted) (Emphasis added).
We further stated in White that “[n]ot only is the sale of dedicated public land prohibited, so is the lease of dedicated public land. A municipality has been found to lack authority to lease dedicated public property to private concerns where the lease would be inconsistent with the terms of the dedication.”
Similarly, in this case, the Borough has an obligation to uphold the dedication of Kardon Park as public parkland and is precluded from assenting to the use of Kardon Park for -*any other purpose, whether it be in the form of a sale, a lease, or the grant of an easement for the benefit of a private developer. Each of the aforementioned actions results in the alienation, disposal, or encumbering of property dedicated to public use and/or held in trust by the Borough for public use, and is specifically prohibited by Hoffman and White. Nevertheless, similar to the township in White, the Borough is not without recourse. The Borough could seek Orphans’ Court approval under section 4 of the DDPA to “to apply the property to a different public purpose.” Id. at 195.
While the legislature may delegate broad powers to a municipality to permit and control reasonable encroachments upon public lands, such as sidewalks, “[s]uch authority must be by legislative grant in clear words or by unavoidable implication.” 46 South 52nd Street Corporation v. Manlin,
Although it appears that the proposed easements will result in significant alterations to Kardon Park, including: increased runoff from stormwater discharge into the Fourth Lake, which sits above and is connected to the other lakes in the park; the elimination of shore line; the creation of new vegetativе wetlands; the relocation of at least part of the Lions Trail; and new parking areas, (R.R. at 2683a-86a, 2707a-09a, 2745a-49a, 2794a, 2803a),
Accordingly, I would reverse the trial court insofar as the Township’s obligation
. Act of December 15, 1959, P.L. 1772, as amended, 53 P.S. §§ 3381-3386.
. Act of June 22, 1964, Special Sess., P.L. 131, as amended, 72 P.S. §§ 3946.1-3946.22.
3. This principle is known as “Dillon's Rule.”
. While the trial court relied on the testimony of Dennis Glackin, a licensed professional land planner, and Victor Kelly, a licensed professional engineer, presented by the Borough and Developers to establish that the easements will not alter the use of these parcels as parkland, this testimony focused almost exclusively upon the discharge of storm-water into the Second, Third, and Fourth Lakes, and did not address how the construction, maintenance, and utility easements, or the use of these easements to satisfy the open space requirements of the Township's zoning
. While this Court has clearly established the DDPA's disallowance of conveying dedicated public parkland in this manner, our Supreme Court’s recent decision in Reading Area Water Authority v. The Schuylkill River Greenway Association, - Pa. -,
After failed negotiations regarding the purchase of an easement, the Reading Area Water Authority (RAWA) adopted a resolution in February 2009 authorizing the use of eminent domain to condemn a utility easement across property owned by the Schuylkill River Greenway Association (Association). The resolution reflected that the easement was to be condemned at the request of a private developer and that it would be used to connect the developer's proposed residential subdivision to water, sewer, and stormwater facilities. Additionally, the resolution stated that the developer would be required to pay all costs associated with the eminent domain proceedings, including just compensation for the Association.
RAWA subsequently filed a complaint in the nature of a declaration of taking with the common pleas court requesting a decree condemning a 50-foot wide easement across the Association’s property. The Association filed preliminary objections asserting that the taking was invalid under the Property Rights Protection Act (PRPA), 26 Pa.C.S. §§ 201-207. Section 204(a) of the PRPA provides that "the exercise by any condemnor of the power of eminent domain to take private property in order to use it for private enterprise is prohibited.” 26 Pa.C.S. § 204(a). The trial court, citing section 204(a), sustained the Association's preliminary objections and dismissed RAWA's complaint. This Court reversed, concluding that RAWA may exercise eminent domain for the installation of a water main and utility lines. While the availability of these utilities would have made the developer’s homes more valuable, we noted that this alone would not negate the project’s public purpose of providing water, sewer, and stormwater serviсes to citizens in RAWA’s service area.
Our Supreme Court reversed, relying on the prohibition in section 204(a) of the PRPA. The court first observed that the record established that RAWA only sought to exercise its eminent domain power to provide a utility easement to the developer. Indeed, the court noted that the developer "would not only finance the project, but would acquire exclusive use of the drainage easement to install, operate, and maintain private stormwater and sewer discharge facilities so as to enable it to build a private residential development.” Reading Area Water Authority,
The easements proposed by the Borough were for the exclusive use of Developers and were necessary for Developers' proposed residential development to meet the stormwater and open space requirements of the Township's zoning ordinance. These proposed easements impact property which has been used for the past four decades, and continues to be used today, as a public park. The granting of the proposed easements would create new precedent allowing a private developer to utilize public property to meet the requirements of a zoning ordinance. Such precedent may serve to discourage the donation of property from private individuals or organizations for a public purpose. Hence, I believe the reasoning underlying our Supreme Court's decision in-Reading Area Water Authority, i.e., precluding a municipality’s grant of an easement via condemnation for the benefit of a private developer and necessary for the construction of a private residential development, is equally applicable here.