Opinion
No. 2205 C.D. 2011
06-18-2013
In Re: Council of the Borough of Downingtown Appeal of: Friends of Kardon Park and Ann Feldman
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Ann Feldman (Feldman) appeals from the November 17, 2011 order of the Court of Common Pleas of Chester County (trial court), Orphans' Court Division, granting the petition of J. Loew & Associates, Inc., and Progressive Housing Ventures, LLC (together, Developers) and the Borough of Downingtown (Borough) seeking a declaration that no Orphans' Court approval was required for the Borough's grant of easements to Developers. The trial court further held that the Donated or Dedicated Property Act (DDPA), Act of December 15, 1959, P.L. 1772, as amended, 53 P.S. §§3381-3386, was not implicated in this matter. We now vacate and remand.
Background and Procedural History
Developers are the equitable owners of a seven-acre parcel of land situated in East Caln Township (Township), Chester County, Pennsylvania (the Property). The Property was originally condemned by the Borough on August 1, 1968, and was most recently used by the Borough for composting and storage. The Borough has since agreed to sell the Property to Developers. In a separate proceeding before the trial court, the Borough and Developers stipulated that the Property itself was not subject to the DDPA, the common law "public trust doctrine," or the Inalienable Property Act, and that the Borough did not require Orphans' Court approval to dispose of or otherwise use the Property. Developers propose to construct seventy multi-family dwelling units and associated improvements on the Property. (Reproduced Record (R.R.) at A-15, A-64-A-65.)
"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 Estate of Ryerss, 987 A.2d 1231, 1237 n.8 (Pa. Cmwlth. 2009) (citation omitted).
20 Pa.C.S. §§8301-8306.
The reproduced record submitted by Feldman does not follow the proper numbering format, i.e., the Arabic figure followed by a lowercase a, as set forth in Pa. R.A.P. 2173.
The Borough is also the owner of two other parcels of land, identified as Chester County UPI Nos. 40-1-23.1-E (Premises A) and 11-4-23-E (Premises B), which border the Property and are used as parkland. The Borough agreed to grant Developers a construction easement with respect to Premises A and B to complete park improvements for enhancement of the public's passive recreational use of the existing park and to perform environmental remediation. The Borough also agreed to grant Developers a permanent easement to discharge stormwater into an existing man-made pond located on Premises A, known as the "Fourth Lake." Without these easements, Developers will be unable to develop the Property in compliance with the open space and stormwater management requirements of the Township's Zoning Ordinance. (R.R. at A-15-A-16.)
Premises A and B encompass land within the Township and the Borough and are part of a larger, forty-acre group of Borough-owned parcels that comprise Kardon Park.
More specifically, this temporary construction easement will allow Developers to construct a new walking path, add footbridges, increase the number of public parking spaces, make pond improvements and wetlands plantings, and perform other landscaping. (R.R. at A-18.)
On July 5, 2010, the Township's Board of Supervisors (Board) granted Developers conditional use approval for their development, including the utilization of Premises A for open space and stormwater management and the utilization of a portion of Premises B for open space. Specifically, Premises A and B will be deed-restricted to remain as public open space, with requisite maintenance provisions as part of the conditional use approval, thereby satisfying the aforementioned open space and stormwater management requirements. As an additional condition of this approval, the Board stated that, if required, the Borough shall obtain the removal of any deed restrictions affecting the proposed development under the Project 70 Land Acquisition and Borrowing Act (Act 70). Feldman appealed this grant of conditional use approval to the trial court, which affirmed the Board's order on June 27, 2011. (R.R. at A-16, A-80.)
Act of June 22, 1964, Special Sess., P.L. 131, as amended, 72 P.S. §§3946.1-3946.22.
However, by opinion and order dated July 12, 2012, this Court reversed the trial court's order, concluding that, since the Borough used Act 70 funds to purchase Premises A, the Borough must first obtain approval from the General Assembly to convey an encumbrance to Developers in accordance with section 20(b) of Act 70.
Feldman v. Board of Supervisors of East Caln Township (Feldman I), 48 A.3d 543 (Pa. Cmwlth. 2012).
Section 20(b) of Act 70 specifically provides that "[n]o lands acquired with funds made available under this act shall be disposed of or used for purposes other than those prescribed in [Act 70] without the express approval of the General Assembly...." 72 P.S. §3946.20(b).
While those appeals were pending, the Borough and Developers filed the present petition seeking a declaration that the Borough was not required to obtain Orphans' Court approval for the grant of the construction and stormwater easements to Developers. Feldman and Friends of Kardon Park intervened before the trial court and filed an answer alleging that existing law does not permit a private developer to utilize public land, especially land which is subject to a deed restriction and an Act 70 restriction, to satisfy the Township's open space and stormwater management requirements. (R.R. at A-14-A-27.)
The trial court conducted a hearing on November 10, 2011. By order dated November 17, 2011, the trial court granted the joint petition filed by the Borough and Developers, concluding that Orphans' Court approval was not required and that the DDPA was not implicated. In an extensive footnote within this order, the trial court explained that the property equitably owned by Developers had not been donated or dedicated for the public use and that the Orphans' Court's jurisdiction only extends to a municipality's decision to sell or discontinue use of such property. Additionally, the trial court stated that, in order for the DDPA to apply, there must be a sale or alienation of property held in trust for the public. 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. Rather, the trial court noted that Kardon Park would continue to be used for public park purposes. Feldman and Friends of Kardon Park appealed to this Court. (R.R. at A-12-A-13.)
On March 29, 2012, Friends of Kardon Park filed a praecipe to discontinue its appeal. However, Feldman remained as an appellant.
On appeal, Feldman argues that the trial court erred in concluding that approval of the Orphans' Court was not required and that the DDPA was not implicated. Feldman also argues that Developers' petition implicates the common law "public trust doctrine" and Act 70. We agree.
Our scope of review of an Orphans' Court's order is limited to determining whether the record is free from legal error and whether the Orphans' Court's factual findings are supported by the evidence. In re Estate of Ryerss.
DDPA
Feldman relies on our previous decision in White v. Township of Upper St. Clair, 799 A.2d 188 (Pa. Cmwlth. 2002), in support of her argument. In White, we held that residents of the Township of Upper St. Clair had standing under the DDPA to contest the township's lease of a portion of a dedicated public park to a private entity for construction of a communications tower. In White, we noted that the DDPA created a duty in the political division holding lands for use as public facility to use any such lands "for the purpose or purposes for which they were originally dedicated or donated, except insofar as modified by court order...." We explained that the DDPA specified the procedure for obtaining such a court order, giving the court the specific power to remove a restrictive covenant where the use of the property is no longer practicable or in the public interest. Further, we indicated in White that the DDPA does not specify which persons may enforce the duty described above.
At the time White was decided, this duty was identified in section 2 of the DDPA, 53 P.S. §3382. Currently, identical language can be found in section 3 of the DDPA, 53 P.S. §3383.
This power to remove a restrictive covenant was previously identified in section 3 of the DDPA, 53 P.S. §3383, but can now be found in section 4 of the DDPA, which provides as follows:
When, in the opinion of the political subdivision which is the trustee, the 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 purposes.
53 P.S. §3384.(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 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 user or otherwise, the court shall also determine the consideration, if any, to be paid to the political subdivision.
Feldman contends that the Borough's grant of the proposed easements in the present case constitutes a sale or alienation of the Property under the DDPA, similar to the lease in White. Feldman notes that the "Fourth Lake" on Premises A into which Developers would be permitted to discharge stormwater is currently used for fishing, swimming, and ice skating in the winter and she asserts that these activities will be limited by Developers' use of the "Fourth Lake." More specifically, Feldman alleges that part of the "Fourth Lake" will be altered, future uses of the parkland and the "Fourth Lake" will be limited by the demands of Developers for stormwater management, and the "Fourth Lake" will no longer be safe for the activities described above.
While the trial court correctly noted that the property equitably owned by Developers had not been donated or dedicated for the public use, Premises A and B are part of the dedicated and publicly-used Kardon Park. At the very least, the proposed easements with respect to these parcels will alter the use of, or constitute an alienation of, portions of Kardon Park, thereby implicating the DDPA and necessitating Orphans' Court approval. Therefore, we must remand to the trial court to make further findings and conclusions with respect to the application of the DDPA.
Black's Law Dictionary defines the term "alienation," in the context of real property law, as the "[c]onveyance or transfer of property to another." Black's Law Dictionary 84 (9th ed. 2009). See also Allegheny County Port Authority v. Flaherty, 293 A.2d 152 (Pa. Cmwlth. 1972) (discussing authority of the Mayor of the City of Pittsburgh to "alienate" publicly-owned property to the Allegheny County Port Authority under section 13 of the Act of April 6, 1956, P.L. (1955) 1414, as amended, 55 P.S. §563 (relating to port authorities in counties of the second class)).
Regarding the common law "public trust doctrine," we explained in Borough of Downingtown v. Friends of Kardon Park (Feldman II), 55 A.3d 163 (Pa. Cmwlth. 2012), appeals denied, ___ Pa. ___, ___ A.3d ___ (Nos. 662 and 663 MAL 2012, filed March 21, 2013), that our Supreme Court held in In re Erie Golf Course, 605 Pa. 484, 992 A.2d 75 (2010), that the DDPA incorporates the "salient common-law principles" of the public trust doctrine and, "[t]o the extent the [DDPA] modifies the public trust doctrine, the prior common-law principles are superseded." Id., 605 Pa. at 503-04 n.16, 992 A.2d at 86 n.16.
Act 70
Feldman also contends that Premises A and B were purchased with government funds pursuant to Act 70, which prohibits lands acquired with such funds from being disposed of or used for purposes other than those prescribed in the Act without the express approval of the General Assembly. See Section 20(b) of Act 70, 72 P.S. §3946.20(b). However, Developers correctly note that section 20(e) of Act 70 authorizes only the Commonwealth, and not a private citizen, to enforce the restrictions relating to the use of parcels purchased with Act 70 funds for recreation, conservation, and historical purposes. 72 P.S. §3946.20(e); White (contrasting the DDPA, which does not specify which party may enforce its provisions, with Act 70, which specifically identifies the Commonwealth as the only party that may enforce the Act 70 restrictions). Thus, remand is also required in order for the trial court to make further findings and conclusions regarding Act 70.
Section 20(b) of Act 70 provides that:
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 the Commonwealth or a political subdivision, as the 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.'
Section 20(e) of the DDPA 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." --------
We note that our previous decisions in Feldman I and Borough of Downingtown v. Friends of Kardon Park (Feldman II), 55 A.3d 163 (Pa. Cmwlth. 2012), appeals denied, ___ Pa. ___, ___ A.3d ___ (Nos. 662 and 663 MAL 2012, filed March 21, 2013), offer guidance in this matter. In Feldman I, we reversed an order of the trial court affirming the Board's order to grant Developers' conditional use application. In that case, we held that removal of the Act 70 deed restriction was required prior to Developers' use of the aforementioned easements granted by the Borough to meet the open space and stormwater management requirements of the Township's Zoning Ordinance. Additionally, we noted that removal of the Act 70 deed restriction requires an enactment by the General Assembly, explaining that:
As noted above, section 20(b) of Act 70 specifically provides that '[n]o lands acquired with funds made available under this act shall be disposed of or used for purposes other than those prescribed in [Act 70] without the express approval of the General Assembly....' 72 P.S. §3946.20(b).Feldman I, 48 A.3d at 549-50.
...
The record in this case does not show that the General Assembly granted the Borough the authority to convey an encumbrance to Developers to use parcel 40-1-23.1 [Premises A] to meet the open space and stormwater management requirements of the Township's Ordinance, or to empower Developers to construct or maintain the facilities, improvements, road improvements, or driveways related thereto. Thus, the uses to which [Premises A] is subject under the Agreement and its amendments are ultra vires and without effect in the absence of prior approval by the General Assembly. See Deitrick v. Northumberland County, 846 A.2d 180, 186 (Pa. Cmwlth.), appeal denied, 579 Pa. 695, 856 A.2d 836 (2004) ('[I]t is undisputed that the Parcel was originally acquired by the Court with [Act 70] funds and that the County did not obtain the express approval of the General Assembly prior to the first public auction of the Parcel. The County violated the express language of [Act 70] and, on that basis alone, the Chancellor committed no error of law or abuse of discretion in declaring the first auction a nullity.')
In Feldman II, we vacated an order of the trial court denying the Borough's petition for approval of the sale of certain real property, including portions of Kardon Park, to Developers and remanded for further findings. Feldman II also involved Premises A and B, and while neither was part of the sale, the Borough had agreed to grant to Developers the same proposed easements at issue in this case. In Feldman II, we directed the trial court to consider on remand whether the proposed easements were inconsistent with the use of these premises as parkland.
Collateral Estoppel
Finally, Feldman argues that the trial court's October 7, 2010 decision in Feldman II denying the Borough's petition for approval of the sale of certain portions of Kardon Park to Developers collaterally estops Developers from proceeding with the present action. We disagree.
Generally, collateral estoppel forecloses re-litigation of issues of fact or law in subsequent actions where the following criteria are met: (1) the issue in the prior adjudication was identical to the one presented in the later action; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; (4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in a prior action; and (5) the determination in the prior proceeding was essential to the judgment. Callaghan v. Workers' Compensation Appeal Board (City of Philadelphia), 750 A.2d 408 (Pa. Cmwlth. 2000).
Feldman contends that these five criteria are met in this case. Regarding the first criteria, Feldman contends that Feldman II involved the issue of whether a private developer can purchase or use public parkland. However, Feldman misconstrues the issue in that case. The court in Feldman II stated that the sole issue before it was "whether or not the Borough should be permitted to sell this Property to Progressive Ventures for the intended development purposes, as opposed to maintaining the Property as parkland." (R.R. at A-114.) The property purported to be sold included the entire area known as Kardon Park, comprising a total of over 40 acres of land within the Borough and the Township. To the contrary, the present case does not involve a sale or even the entire 40-acre parcel. Rather, the present case involves the Borough's grant of the proposed easements to Developers over a portion of Kardon Park, Premises A and B, and the sole issue concerns whether the Borough was required to obtain Orphans' Court approval for this grant. Moreover, even with the easements, the property will continue to be used as public parkland. Because the issue in the prior adjudication is not identical to the issue in the present action, collateral estoppel does not apply.
Accordingly, the order of the trial court is vacated. The matter is remanded to the trial court for further proceedings consistent with this opinion.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 18th day of June, 2013, the order of the Court of Common Pleas of Chester County, Orphans' Court Division (trial court), dated November 17, 2011, is hereby vacated. The matter is remanded to the trial court for further proceedings consistent with this opinion.
Jurisdiction relinquished.
/s/_________
PATRICIA A. McCULLOUGH, Judge