In re Borough of Downingtown

Concurring and Dissenting OPINION BY

Judge PATRICIA A. McCULLOUGH.

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)1 controls the disposition of the Southern Parcels by the Borough of Downingtown (Borough) and that the DDPA did not apply to the Borough’s disposition of the Northern Parcels given the General Assembly’s releases of the same from the restrictions imposed by-the Project 70 Land Acquisition and Borrowing Act (Project 70 Act).2 I likewise join the *746Majority opinion insofar as it reverses the trial court’s decision concluding that Kim Manufacturing Company, Stewart Hall, L.P., Friends of Kardon Park, and Ann Feldman (together, Objectors) lacked standing to contest the conveyance of the Northern Parcels.

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, 799 A.2d 188 (Pa.Cmwlth.2002), appeal denied, (Pa., Nos. 410 and 411 WAL 2002, filed May 11, 2004). Dedication of land for public use as a park is just that. It does not encompass any intention that there be use of the land for private inurement of a developer. Along these lines, I also disagree with the Majority’s characterization of the use of a portion of parkland to satisfy an open space requirement as merely problematic in the land use sense. The present matter is not merely problematic in the land use sense, it runs directly afoul of our prior holdings in White and White v. Township of Upper St. Clair, 968 A.2d 806 (Pa.Cmwlth.2009) (White II), establishing a duty on the part of a municipality under the DDPA to adhere to the dedication of certain land for public use.

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 on our Supreme Court’s holding in Hoffman v. City of Pittsburgh, 365 Pa. 386, 75 A.2d 649, 651 (1950), that:

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 ... *747or 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.” 799 A.2d at 195. White involved a township’s lease of .428 acres of a 200-acre public park for construction of a communications tower, and, unlike the present case, there was very little discussion in White regarding the impact that the tower would have on the public’s use of the land as a park. We found that the residents had standing under the DDPA to challenge the township’s lease of even a small portion of dedicated, public land and that the township had recourse under section 4 of the DDPA by applying “to orphans’ court for approval to apply the property to a different public purpose.” Id. However, without such approval, “the [tjownship was obligated to ensure that the use of the .428 acres of Boyce Park at issue ... was consistent with a recreation, conservation or historical purpose.” Id.

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, 398 Pa. 304, 157 A.2d 381, 388 (1960). Here, the legislature, through the enactment of the DDPA, has imposed strict limitations with respect to a municipality’s use and disposition of dedicated property.

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 vegetative 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),4 our review does not end here because the easements at issue in this case would also allow De*748velopers to utilize portions of Kardon Park to meet utility, stormwater, and perhaps most importantly, open space requirements in the Township’s zoning ordinance. Indeed, in their original joint petition seeking a declaration that no Orphans’ Court approval was required for the easements, the Borough and Developers state that all of UPI No. 40-1-23.1, one of the Northern Parcels, and that portion of the Meisel parcel located in the Township, will be “included in the calculation of open space required under the Township Zoning Ordinance for the Development.” (R.R. at 2526a.) Neither the Borough nor Developers have set forth any case law or advanced any public policy which would favor a private developer’s use of public land to satisfy the requirements of a local ordinance. The easements at issue solely benefit Developers, which need these easements in order to proceed with their proposed development.5

Accordingly, I would reverse the trial court insofar as the Township’s obligation *749to uphold the public dedication is absolute, and, therefore, the Township lacks the authority to grant easements for the private inurement of Developers without first seeking Orphans’ Court approval of the easements to “apply the property to a different public purpose.” Section 4 of the DDPA, 53 P.S. § 3384.

. 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 *748ordinance, will affect the public use of these parcels.

. 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. -, 100 A.3d 572 (2014), is also instructive. The primary issue in that case concerned whether a municipal authority may exercise its eminent domain power to condemn an easement over privately-owned land where the sole purpose of the easement was to supply a private developer with land to install sewer drainage facilities necessary for a proposed private residential subdivision.

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 services 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, 100 A.3d at 580. The court next described the broad prohibition in section 204(a), which precludes the condemnation of property “to use it for private enterprise.” 26 Pa.C.S. § 204(a) (emphasis added). The court observed that "[wjhatever public benefit may ensue from the drainage easement, it is being taken to be used for private enterprise and, as such, is prohibited by Section 204(a).” Reading Area Water Authority, 100 A.3d at 581 (emphasis added).

*749Here, although the particular parcels over which the easements would run were not acquired by eminent domain, as in RAWA, these parcels comprise only part of Kardon Park, the entirety of which was dedicated to public parkland use. At least two of the parcels comprising Kardon Park, the Southern Parcels, were acquired by the Borough via the use of its eminent domain power, portions of which the Borough now seeks to convey to Developers. Hence, the present case does involve, in the overall scheme, the Borough’s use of its eminent domain power to take private property exclusively for private enterprise. Even though the condemnation of the Southern Parcels in this case did not occur contemporaneously with the granting of easements as in RAWA, the condemnation and subsequent dedication could be viewed as an attempt to circumvent the prohibition against condemnation for a private use under section 204(a) of the PRPA.

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.