Pennsbury Village Associates, LLC v. McIntyre

CONCURRING OPINION BY

Judge FRIEDMAN.

I concur in the result reached by the majority. However, I cannot agree with the majority’s conclusion that “the deed restriction that [Aaron] McIntyre sought to have enforced is an environmental law or regulation” for purposes of section 8302 of the Participation in Environmental Law or Regulation Act (Immunity Act), 27 Pa.C.S. § 8302. (Majority op. at 13-14) (emphasis added). Instead of reversing the trial court because the deed restriction is an environmental law or regulation, I would reverse because the deed restriction relates to “implementation of an environmental law or regulation” under section 8302 of the Immunity Act.

Pennsbury Village Associates, LLC (PVA) filed a complaint against McIntyre after McIntyre sought to have the County Commissioners enforce a deed restriction limiting the use of certain public property for open space, parkland or recreational purposes. Pennsbury Township acquired the property with the aid of funds from the Chester County Heritage Park and Open Space Municipal Grant Program (Grant Program), which required the deed restriction. The County instituted the Grant Program through Resolution No. 89-41 and pursuant to Article I, Section 27 of the Pennsylvania Constitution.1

McIntyre sought immunity from PVA’s lawsuit under section 8302(a) of the Immunity Act, which provides, in pertinent part:

*966[A] person that ... makes an oral or written communication to a government agency relating to enforcement or implementation of an environmental law or regulation shall be immune from civil liability in any resulting legal proceeding for damages where the action or communication is aimed at procuring favorable governmental action.

27 Pa.C.S. § 8302(a) (emphasis added). Section 8301 of the Immunity Act defines “implementation of environmental law and regulation” as “[ajctivity relating to the development and administration of environmental programs developed under environmental law and regulations.” 27 Pa.C.S. § 8301.

There can be no question that Resolution No. 89-41 implemented an environmental law, i.e., Article I, Section 27 of the Pennsylvania Constitution. Indeed, this court has held that: (1) Article I, Section 27 is a self-executing provision of our state constitution; (2) with respect to open space matters, municipal agencies have responsibility to apply the Article I, Section 27 mandate to be trustees of public natural resources; and (3) municipal agencies act as trustees of the public natural resources as they fulfill their respective roles in the planning and regulation of land use. Community College of Delaware County v. Fox 20 Pa.Cmwlth. 335, 342 A.2d 468 (1975); Payne v. Kassab, 11 Pa.Cmwlth. 14, 312 A.2d 86 (1973), aff'd, 468 Pa. 226, 361 A.2d 263 (1976).

Here, the County activated the Grant Program through Resolution No. 89-41 and pursuant to Article I, Section 27. The County required the administrators of the Grant Program to impose a deed restriction on property acquired with the aid of funds received from the Grant Program. Thus, the deed restriction relates to the administration of the Grant Program, an environmental program developed under Article 1, Section 27 of the Pennsylvania Constitution. This makes McIntyre’s request that the County Commissioners enforce the deed restriction a communication relating to the implementation of an environmental law. As such, McIntyre was entitled to immunity under section 8302(a) of the Immunity Act.2

Accordingly, I agree that the Court of Common Pleas of Chester County erred in denying McIntyre’s request for immunity under section 8302(a) of the Immunity Act.

Judge COHN JUBELIRER joins in this concurring opinion.

. Article I, Section 27 of the Pennsylvania Constitution states that: (1) the people have a *966right to clean air, pure water and to the preservation of the natural, scenic, historic and esthetic values of the environment; (2) our state’s public natural resources are the common property of all the people, including generations yet to come; and (3) as trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people. Pa. Const., art. I, § 27.

. In my view, McIntyre’s request to enforce the deed restriction is not a communication relating to enforcement of an environmental law or regulation because the deed restriction is not an environmental law or regulation.