Downingtown Borough (Friends of Kardon Park,Aplts)

[J-125A-L-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
IN RE: PETITION OF THE BOROUGH : No. 12 MAP 2016
OF DOWNINGTOWN :
: Appeal from the Order of the
: Commonwealth Court at No. 2342 CD
APPEAL OF: FRIENDS OF KARDON : 2013 dated April 29, 2015 which
PARK AND ANN FELDMAN : affirmed in part and reversed in part the
: Order of the Chester County Court of
: Common Pleas, Orphans' Court
: Division, at No. 1509-0516 dated
: December 20, 2013.
:
: ARGUED: December 7, 2016
IN RE: PETITION OF THE BOROUGH : No. 13 MAP 2016
OF DOWNINGTOWN :
: Appeal from the Order of the
: Commonwealth Court at No. 26 CD
APPEAL OF: FRIENDS OF KARDON : 2014 dated April 29, 2015 which
PARK AND ANN FELDMAN : affirmed in part and reversed in part the
: Order of the Chester County Court of
: Common Pleas, Orphans' Court
: Division, at No. 1509-0516 dated
: December 20, 2013.
:
: ARGUED: December 7, 2016
IN RE: PETITION OF THE BOROUGH : No. 14 MAP 2016
OF DOWNINGTOWN :
: Appeal from the Order of the
: Commonwealth Court at No. 75 CD
APPEAL OF: FRIENDS OF KARDON : 2014 dated April 29, 2015 which
PARK AND ANN FELDMAN : affirmed in part and reversed in part the
: Order of the Chester County Court of
: Common Pleas, Orphans' Court
: Division, at No. 1509-0516 dated
: December 20, 2013.
:
: ARGUED: December 7, 2016
IN RE: PETITION OF THE BOROUGH : No. 15 MAP 2016
OF DOWNINGTOWN :
: Appeal from the Order of the
: Commonwealth Court at No. 76 CD
APPEAL OF: FRIENDS OF KARDON : 2014 dated April 29, 2015 which
PARK AND ANN FELDMAN : affirmed in part and reversed in part the
: Order of the Chester County Court of
: Common Pleas, Orphans' Court
: Division, at No. 1511-1629 dated
: December 20, 2013.
:
: ARGUED: December 7, 2016
IN RE: PETITION OF THE BOROUGH : No. 16 MAP 2016
OF DOWNINGTOWN :
: Appeal from the Order of the
: Commonwealth Court at No. 2342 CD
APPEAL OF: BOROUGH OF : 2013 dated April 29, 2015 which
DOWNINGTOWN, COUNCIL OF THE : affirmed in part and reversed in part the
BOROUGH OF DOWNINGTOWN, : Order of the Chester County Court of
PROGRESSIVE HOUSING VENTURES, : Common Pleas, Orphans' Court
LLC AND J. LOEW & ASSOCIATES, INC. : Division, at No. 1509-0516 dated
: December 20, 2013.
:
: ARGUED: December 7, 2016
IN RE: PETITION OF THE BOROUGH : No. 17 MAP 2016
OF DOWNINGTOWN :
: Appeal from the Order of the
: Commonwealth Court at No. 26 CD
APPEAL OF: BOROUGH OF : 2014 dated April 29, 2015 which
DOWNINGTOWN, COUNCIL OF THE : affirmed in part and reversed in part the
BOROUGH OF DOWNINGTOWN, : Order of the Chester County Court of
PROGRESSIVE HOUSING VENTURES, : Common Pleas, Orphans' Court
LLC AND J. LOEW & ASSOCIATES, INC. : Division, at No. 1509-0516 dated
: December 20, 2013.
:
: ARGUED: December 7, 2016
IN RE: PETITION OF THE BOROUGH : No. 18 MAP 2016
OF DOWNINGTOWN :
: Appeal from the Order of the
: Commonwealth Court at No. 75 CD
APPEAL OF: BOROUGH OF : 2014 dated April 29, 2015 which
DOWNINGTOWN, COUNCIL OF THE : affirmed in part and reversed in part the
BOROUGH OF DOWNINGTOWN, : Order of the Chester County Court of
[J-125A-L-2016] - 2
PROGRESSIVE HOUSING VENTURES, : Common Pleas, Orphans' Court
LLC AND J. LOEW & ASSOCIATES, INC. : Division, at No. 1509-0516 dated
: December 20, 2013.
:
: ARGUED: December 7, 2016
IN RE: PETITION OF THE BOROUGH : No. 19 MAP 2016
OF DOWNINGTOWN :
: Appeal from the Order of the
: Commonwealth Court at No. 76 CD
APPEAL OF: BOROUGH OF : 2014 dated April 29, 2015 which
DOWNINGTOWN, COUNCIL OF THE : affirmed in part and reversed in part the
BOROUGH OF DOWNINGTOWN, : Order of the Chester County Court of
PROGRESSIVE HOUSING VENTURES, : Common Pleas, Orphans' Court
LLC AND J. LOEW & ASSOCIATES, INC. : Division, at No. 1511-1629 dated
: December 20, 2013.
:
: ARGUED: December 7, 2016
:
IN RE: PETITION OF THE BOROUGH : No. 20 MAP 2016
OF DOWNINGTOWN :
: Appeal from the Order of the
: Commonwealth Court at No. 2342 CD
APPEAL OF: KIM MANUFACTURING : 2013 dated April 29, 2015 which
COMPANY AND STEWART HALL, L.P. : affirmed in part and reversed in part the
: Order of the Chester County Court of
: Common Pleas, Orphans' Court
: Division, at No. 1509-0516 dated
: December 20, 2013.
:
: ARGUED: December 7, 2016
IN RE: PETITION OF THE BOROUGH : No. 21 MAP 2016
OF DOWNINGTOWN :
: Appeal from the Order of the
: Commonwealth Court at No. 26 CD
APPEAL OF: KIM MANUFACTURING : 2014 dated April 29, 2015 which
COMPANY AND STEWART HALL, L.P. : affirmed in part and reversed in part the
: Order of the Chester County Court of
: Common Pleas, Orphans' Court
: Division, at No. 1509-0516 dated
: December 20, 2013.
:
: ARGUED: December 7, 2016
[J-125A-L-2016] - 3
IN RE: PETITION OF THE BOROUGH : No. 22 MAP 2016
OF DOWNINGTOWN :
: Appeal from the Order of the
: Commonwealth Court at No. 75 CD
APPEAL OF: KIM MANUFACTURING : 2014 dated April 29, 2015 which
COMPANY AND STEWART HALL, L.P. : affirmed in part and reversed in part the
: Order of the Chester County Court of
: Common Pleas, Orphans' Court
: Division, at No. 1509-0516 dated
: December 20, 2013.
:
: ARGUED: December 7, 2016
IN RE: PETITION OF THE BOROUGH : No. 23 MAP 2016
OF DOWNINGTOWN :
: Appeal from the Order of the
: Commonwealth Court at No. 76 CD
APPEAL OF: KIM MANUFACTURING : 2014 dated April 29, 2015 which
COMPANY AND STEWART HALL, L.P. : affirmed in part and reversed in part the
: Order of the Chester County Court of
: Common Pleas, Orphans' Court
: Division, at No. 1511-1629 dated
: December 20, 2013.
:
: ARGUED: December 7, 2016
OPINION
JUSTICE TODD DECIDED: June 20, 2017
In these consolidated cross-appeals, we accepted review to consider whether
three statutory provisions — the “Donated or Dedicated Property Act” (“DDPA”),1 the
“Project 70 Land Acquisition and Borrowing Act” (“Project 70 Act”),2 and the Eminent
Domain Code3 — allow Appellant Downingtown Borough (“Borough”)4 to sell to private
housing developers — Appellants Progressive Housing Ventures, LLC and J. Loew and
1
53 P.S. §§ 3381-3386.
2
72 P.S. §§ 3946.1 et seq.
3
26 Pa.C.S. §§ 101 et seq.
4
Tracking the manner in which the litigation proceeded in the lower courts,
Downingtown Borough has been designated by our Court as the Appellant.
[J-125A-L-2016] - 4
Associates, Inc. (“Developers”) — four parcels of land that, collectively, comprise
“Kardon Park,” a public community park currently owned and maintained by the
Borough, and to grant easements over parts of the park. After review, we vacate the
order of the Commonwealth Court with respect to the Borough’s proposed sale to
Developers of the two parcels described herein as the Southern Parcels, reverse the
order of the Commonwealth Court regarding the proposed sale by the Borough to
Developers of the two parcels described herein as the Northern Parcels, and reverse
the order of the Commonwealth Court involving the Borough’s grant of easements to
Developers over the parcels described herein, and we remand to that tribunal for further
proceedings consistent with this opinion.
I. Background
A. Factual History
Downingtown Borough, in which Kardon Park is primarily situated, is one of
Pennsylvania’s oldest communities.5 Founded as a colonial frontier village in 1716, the
Borough has, from its inception, been a hub of industrial activity. An ample number of
bustling corn and grist mills operated there during the 1700s, and it served as a vital
supply depot for the colonists during the Revolutionary War. Later, during the Industrial
Revolution in the 1800s, a number of paper mills and various other manufacturing
industries began operating in and around the Borough. Manufacturing remained a
cornerstone of the Borough’s economy throughout the majority of the 20th century.
Despite this industrial history, the Borough has made a concomitant effort to
acquire and reserve land for the establishment of public parks. Thus, in 1925, the
Borough created Kerr Park, a municipal park along the eastern banks of Brandywine
5
This history is derived, in part, from descriptions by the local historical society. See
Downingtown Area Historical Society, History of Downingtown, available at
http://www.downingtownareahistoricalsociety.org/History.html.
[J-125A-L-2016] - 5
Creek, which was noteworthy in that it was sustained not only by public expenditures,
but by a community subscription program in which Borough residents voluntarily paid a
monthly fee for maintenance and operation of the park. Kardon Park, at issue herein,
was likewise created by the Borough for similar public purposes through a series of land
acquisitions in the 1960s and 1970s, explained in more detail infra. It lies just east of
Kerr Park, and straddles the northern border of the Borough with East Caln Township. 6
Consistent with this historical legacy of dual-purpose land use within the
Borough, some of the land on which Kardon Park is located was formerly used for
industrial activities and as a disposal area for byproducts of those activities. In the
1930s, the property which now comprises the western part of the park was extensively
quarried for minerals by its owners. Once the minerals were exhausted, the open
quarry pits were filled in with industrial waste generated by various industries operating
within the Borough, as well as municipal waste. Orphans’ Court Opinion, 10/7/10, at 5.
The waste dumped into these quarries included iron slag, heavy metals, paper, and
wood products. Id. at 18. The waste layer that accumulated from the years of dumping,
which is intermixed with soil, ranges from 2 to 12 feet in thickness, and occupies an
area of approximately 250,000 cubic yards. Id.
Beginning in the 1960s, the Borough began acquiring, through various means,
the then-privately owned parcels of land which now comprise the majority of the park’s
total land area. In 1962, the Borough purchased 7.6 acres of wooded property from its
owner Kathryn Meisel. This parcel, UPI 11-4-237 (the “Meisel Parcel”), which is situated
6
East Caln Township does not own any of the land comprising Kardon Park, nor does
it have any maintenance responsibility for the park, and it is not a party to this litigation.
7
UPI stands for “uniform parcel identifier” which is a statutorily established “finite,
punctuated sequence of numbers indicating the land parcel or other interest in real
estate as shown on the recorded county tax map” which can also function, as it does in
the case at bar, as the county tax parcel number. 21 P.S. § 332.
[J-125A-L-2016] - 6
partly in the Borough and partly in East Caln Township, contains two manmade ponds
(“Second Lake” and “Third Lake”)8 which were the remnants of the watercourse, known
as a “millrace,” used in the operation of the very first grist mill complex erected in the
Borough in the 1700s. Id. at 3.
In 1964, to address the problem of dwindling land available for public recreation
and conservation uses, and in response to the accelerating population growth of urban
and suburban areas, the General Assembly passed the Project 70 Act which authorized
the Commonwealth to borrow up to $20 million to provide financial assistance to local
governments for the acquisition of lands which were either currently being used for
recreational, conservation, or historical purposes, or which could be put to such uses in
the future. See 72 Pa.C.S. § 3946.2 (Project 70 Act statement of purpose); id.
§ 3946.16(a)(4) (allocation of bond monies).9 The Project 70 Act authorizes the
General Assembly to furnish to the municipality up to fifty percent of the cost of
acquisition of such lands. Id. § 3946.16(a)(4). In exchange for this subsidy, the Project
70 Act requires that any deed of conveyance of property acquired with such monies
8
Second Lake presently occupies the Southeastern corner of Kardon Park and is
connected via watercourse to Third Lake which lies immediately to its north.
9
The Project 70 Act was enacted by the legislature to implement Article 8, § 15 of the
Pennsylvania Constitution, entitled “Project ‘70’,” which was adopted by the voters of
the Commonwealth in 1963, and which provides:
In addition to the purposes stated in article eight, section
seven of this Constitution, the Commonwealth may be
authorized by law to create debt and to issue bonds to the
amount of seventy million dollars ($70,000,000) for the
acquisition of land for State parks, reservoirs and other
conservation and recreation and historical preservation
purposes and for participation by the Commonwealth with
political subdivisions in the acquisition of land for parks,
reservoirs and other conservation and recreation and
historical preservation purposes, subject to such conditions
and limitations as the General Assembly may prescribe.
Pa. Const. art. VIII, § 15.
[J-125A-L-2016] - 7
contain a restrictive covenant specifying that “[t]his indenture is given to provide land for
recreation, conservation and historical purposes, as said purposes are defined in [the
Project 70 Act].” Id. § 3946.20(c).10
The Borough obtained Project 70 Act funds in 1968 and used them to finance
fifty percent of the cost of two parcels of land, which it purchased from Downingtown
Paper Company: a 14-acre tract in East Caln Township, the northern third of which is
occupied by a man-made pond known as “Fourth Lake,” UPI 40-1.23.1; and an
adjoining 7.4-acre piece of property located in the Borough, bordering the first parcel at
its southern edge, UPI 11-4-13. The Borough used its own public funds to cover the
other half of the total purchase price of $12,671.20. These two parcels were collectively
designated by the lower courts as the “Northern Parcels,” and they will be referred to in
the same manner herein. The “Deed of Confirmation” conveying these properties to the
Borough, necessary for the release of the Project 70 Act grant funds,11 contained an
indenture specifying that it was being used to provide land “for recreation, conservation
and historical purposes, as defined in [the Project 70 Act].” Deed of Confirmation,
10/30/68, 3 (R.R. 2410a).
In 1974, the Borough exercised its power of eminent domain, via ordinance, and
acquired UPI 11-4-14.2, a 7.4-acre piece of property which adjoins the Meisel Parcel
immediately to the west of Second Lake. The declaration of taking provided that the
purpose of this condemnation was “to expand and enlarge recreation places and space
within the borough limits.” Declaration of Taking, 11/13/74 (R.R. at 2417). The
ordinance authorizing the condemnation provided that the property was being acquired
10
As discussed infra, the Project 70 Act also provides, in pertinent part, that “[n]o lands
acquired with funds made available under this act shall be disposed of or used for
purposes other than those prescribed [therein] without the express approval of the
General Assembly.” 72 P.S. § 3946.20(b).
11
See 72 Pa.C.S. § 3946.20.
[J-125A-L-2016] - 8
for “park and recreation purposes.” Ordinance, 11/14/74 (R.R. at 2416). In 1977, the
Borough again utilized its eminent domain authority, via passage of another ordinance,
to obtain title to an adjoining 4.3-acre wooded tract of land immediately to the west of
the first condemned parcel, UPI 11-4-14. Just as with the first condemnation, its
purpose was “to expand and enlarge recreation places and space within the borough
limits,” and the authorizing ordinance stated that the land was being taken for “park and
recreation purposes.” Declaration of Taking, 6/20/77 (R.R. at 2420); Ordinance 6/22/77
(R.R. at 2425). These two parcels were collectively designated by the lower courts, and
will be referred to herein, as the “Southern Parcels.” It is these five parcels — the
Northern Parcels, the Southern Parcels, and the Meisel Parcel — which are the subject
of the case before us.
In 1978, the Borough Council, Borough Manager, and the Mayor of Downingtown
Borough held a ceremony at which they named and dedicated the Southern Parcels as
“Kardon Park,” and they erected a sign on Pennsylvania Avenue, which serves as the
lower boundary of the Southern Parcels, that read “Kardon Park.” Orphans’ Court
Opinion, 10/7/10, at 8, 14. Thereafter, in 1984, a paved, multi-use trail was constructed
in the park by the Borough, which named it the “Lion’s Trail.” It runs along the western
banks of Second and Third Lakes, traversing the entirety of the Southern and Northern
Parcels, whereupon it exits the park and joins with the “Struble Trail,” which is a part of
the national Rails to Trails Network. At the same time, the Borough also constructed a
parking lot at the southern end of the park near Pennsylvania Avenue for use by park
patrons. Since its opening, Lion’s Trail has been used continuously by members of the
public for jogging, walking, and biking. In 2004, the Borough allowed the Crime Victims’
Center of Chester County, a non-profit crime victim’s advocacy organization, to erect a
[J-125A-L-2016] - 9
permanent “Victims of Violence Memorial,” which is the site of annual services in honor
of those who died from acts of violence. Id. at 5-6.
Since 1984, the Borough has continually performed maintenance activities in the
park, such as planting and mowing the grass, caring for the trails and the area around
the Victims of Violence Memorial, and erecting signage to guide park users. The park
has been and continues to be popular with Borough residents and other members of the
public who use it for numerous outdoor activities such as picnics, bird watching, and
family and social gatherings, and the ponds in the park are used for fishing in the
summertime and ice skating in the winter. Id. at 5-6, 14-15. Additionally, from 1984
until 2009, the Borough identified Kardon Park on its zoning maps as either a “Park” or
“Public Park.” Id. at 15.
In the early 1990s, the Borough began envisioning a different use for a portion of
the land in the park — commercial development. Id. at 6. In preparation for selling the
property to a developer, in 1999, the Borough sought and obtained a release from the
General Assembly of the Project 70 Act restrictions on Northern Parcel UPI 11-4-13, in
exchange for the Borough’s imposition of Project 70 Act restrictions on another parcel of
land owned by the Borough, and on an additional parcel the Borough pledged to obtain.
See Act of June 25, 1999, P.L. 220, No. 29, §§ 2-4.
That same year, the Borough sought “Act 2” clearance from the Pennsylvania
Department of Environmental Protection (“DEP”),12 and it enlisted an environmental
12
Act 2 is the name by which our Commonwealth’s “Land Recycling and Environmental
Remediation Standards Act,” 35 P.S. §§ 6026.101-6026.908 (Acts 2, 3, and 4 of 1995),
is generally referred. This program encourages the cleanup and re-use of polluted
property by establishing uniform remediation standards for contaminated soil and
groundwater. Once a property owner files a report demonstrating that the property
meets the required remediation standards under Act 2, and the DEP accepts and
approves the report and any ongoing monitoring plan, the owner and any subsequent
owner are exempted from liability for issues arising from the prior contamination.
(continued…)
[J-125A-L-2016] - 10
engineering firm, Golder Associates, to perform an assessment of the surface and
subsurface soil in the park, as well as the groundwater, to identify any contaminants
which were present, and to prepare a plan for their remediation. Golder’s environmental
analysis identified various heavy metals and industrial byproducts present in the park
soil. Orphans’ Court Opinion, 10/7/10, at 6. Golder ultimately concluded, though, that
“risks due to potential direct contact of both park users and park groundskeepers to
contaminants in the surface soil at Kardon Park were within limits established by the
Pennsylvania DEP.” Id. at 7. Golder additionally conducted surveys of park users and
Borough employees. Id. at 6-7. This survey revealed that 77 percent of the park’s
recreational usage was by people utilizing its trails for walking, running, jogging, biking,
roller-skating, or skateboarding, and that the average length of use was 10 minutes or
less. Id. at 7. Golder included all of this information in a report submitted to the DEP,
formally requesting Act 2 clearance, which the DEP granted in 2000, with the stipulation
that the park property to the west of the walking trail and extending to the park’s
northern border with East Caln Township would be restricted to commercial uses, and
the remainder of the property would be limited in use to “non-residential park uses.”
DEP Order, 1/14/00, 3-4 (R.R. at 2468a).
In July 2006, the Borough formally sought proposals from prospective buyers
who were willing to purchase and redevelop the park. Developers were the successful
bidders, and, on August 24, 2007, Developers and the Borough entered into a purchase
agreement pursuant to which Developers agreed to buy the Northern Parcels, the
Southern Parcels, and the Meisel Parcel for the purpose of constructing a mixed use
development, which would include 305 individual residential units, 40 combination
(…continued)
Pennsylvania Department of Environmental Protection, Land Recycling Program (2017),
available at http://www.dep.pa.gov/Business/Land/LandRecycling/Pages/default.aspx.
[J-125A-L-2016] - 11
residential and commercial rental units, and 20,000 square feet of commercial space.
Orphans’ Court Opinion, 10/7/10, at 7; Agreement to Purchase and Sell Real Estate,
8/17/07 (R.R. at 2921a); First Amendment to Purchase Agreement, 8/17/07 (R.R. at
1223a).
Additionally, a new environmental engineering firm, Advanced GeoServices, was
retained to review the prior environmental risk assessment performed by Golder. In a
March 2008 report, Advanced GeoServices found “exposure to collective concentrations
of arsenic, iron and mercury encountered on the [park] Property represents an
unacceptable risk to park users.” Orphans’ Court Opinion, 10/7/10, at 8. Advanced
GeoServices crafted a comprehensive plan to address the contamination which called
for a two-foot layer of topsoil to be spread over the areas in which waste had historically
been dumped. The DEP approved this plan in August 2008, agreeing that the proposed
soil cap was “an equally conservative and appropriate option to eliminate exposure
pathways and maintain the stability of the historic fill.” DEP Letter, 8/6/08 (R.R. at
2475a). Subsequently, in March 2009, the Commonwealth Department of Community
and Economic Development approved a grant of $990,000 to defray the cost of this
proposed remediation.
In January 2009, the Borough amended its municipal code to create the “Kardon
Park Redevelopment District,” which authorized the planned development in the area
occupied by Kardon Park. Subsequently, the purchase agreement between the
Borough and Developers was modified on September 16, 2009, and, under this revised
agreement, the Borough retained ownership of portions of the park property
encompassed by the entirety of the Meisel Parcel and a part of Northern Parcel UPI 40-
1.23.1. This retained property included all three of the park’s ponds, its trails, the
parking area, the “millrace”, the Victims of Violence Memorial, and “surrounding open
[J-125A-L-2016] - 12
space/park areas.” Second Amendment to Purchase Agreement, 9/16/09, at 2 (R.R. at
1231a). However, with respect to both of these parcels, the Borough granted to the
Developers:
free, uninterrupted perpetual and/or temporary (as
applicable) easements over, under and through the Park
Property as [Developers] reasonably require[] in order to (i)
construct any improvements and perform any work on the
Park Property shown on or required by the [Borough’s]
Conditional Use Approval, approved final subdivision and/or
land development plans, or by other governmental
approvals, including any environmental remediation (ii)
construct or extend utilities to serve the development of all or
any part of the remainder of the Property, Additional
Property or Option Property, (iii) discharge storm water into
the ponds, and (iv) maintain such improvements to the
extent of any ongoing maintenance responsibility of the
[Developers] or of any community association organized to
maintain common amenities of [Developers’] development.
Id.
In July 2010, the Borough’s Board of Supervisors granted Developers conditional
use approval for the construction of their proposed development, which required that
Northern Parcel UPI 40-1.23.1 and the Meisel Parcel continue to be public open space,
but also allowed Developers the permanent right to discharge stormwater into Fourth
Lake, the pond on Northern Parcel UPI 40-1.23.1. The Borough additionally pledged to
obtain removal of any deed restrictions mandated by the Project 70 Act. Once the
construction of the development was complete, the Borough was entitled under the
agreement to receive a percentage of the sale price of each of the dwelling units, and it
pledged to use those monies, in conjunction with other public funds, to build a new
firehouse in the Borough. Orphans’ Court Opinion, 10/7/10, at 8. This planned
disposition by the Borough of these five parcels of parkland gave rise to the present
litigation.
B. Procedural History
[J-125A-L-2016] - 13
In January 2009, residents of the Borough, Ann M. Feldman, Marion Ungrich,
Evelyn Hopkins, and Rosetta Tootle — who presently live near the park property — in
conjunction with a non-profit corporation they had founded with other Borough residents
and other interested parties — “Friends of Kardon Park” — commenced an action in
equity in the Chester County Court of Common Pleas for declarative and injunctive relief
to prohibit the Borough from carrying out the planned sale of the park property. In
February 2009, a similar action, seeking the same prohibitory injunction, was filed in the
same court by Kim Manufacturing Company, which owns and operates a metal
fabrication company adjacent to the park property on its western side, and by Stewart
Hall, L.P., which owns the land on which Kim Manufacturing is situated. (Collectively
these parties, who are the designated appellees in this matter, will be referred to as
“Objectors”).
In March 2009, the Borough filed a petition with the Chester County Orphans’
Court seeking approval for the sale. The petition alleged that the orphans’ court had
jurisdiction of the matter under the DDPA.13 The orphans’ court, by the Honorable
Katherine B.L. Platt, subsequently consolidated the pending action for declaratory and
injunctive relief with the orphans’ court suit, and granted Developers leave to
intervene.14 In September and November 2009, the orphans’ court conducted five days
of hearings, and, after considering the voluminous evidence and arguments of the
parties, issued an opinion in October 2010 denying the Borough’s petition.
13
The Borough also raised a claim under the Inalienable Property Act, 20 Pa.C.S.
§§ 8301-8306, which the orphans’ court rejected. The Borough did not further appeal
this ruling; thus, its propriety is not at issue in the present appeal.
14
The Office of Attorney General also entered an appearance in this matter at that time
in its capacity as parens patriae, but it has taken no position throughout the litigation as
to whether the Borough should be permitted to sell the subject property, and it has not
filed a brief in the present appeal.
[J-125A-L-2016] - 14
Before addressing the orphans’ court’s analysis, we briefly discuss the DDPA.
As our Court observed in the decision of In re Erie Golf Course, 992 A.2d 75 (Pa. 2010),
the fundamental purpose of the DDPA, enacted by the General Assembly in 1959, was
to delineate “the fiduciary nature of municipalities' obligations relative to donated and
dedicated properties and provide for orderly relief therefrom in appropriate
circumstances.” Id. at 86. As relevant to the present matter, the DDPA deems lands
situated within a political subdivision which have been “dedicated to the public use . . .
as a public facility” as “held by [the] political subdivision, as trustee, for the benefit of the
public with full legal title in the said trustee.”15 53 P.S. § 3382. The DDPA further
requires that “[a]ll such lands . . . held by a political subdivision, as trustee, shall be
used for the purpose or purposes for which they were originally dedicated . . . except
insofar as modified by court order pursuant to this act.” Id. § 3383. The DDPA sets
forth the conditions and process for such court ordered modification in Section 3384
thereof, which permits a political subdivision to petition the orphans’ court for relief from
its obligations as trustee of property held in trust as a public facility “[w]hen, 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.” Id. § 3384. If the orphans’ court
determines that the political subdivision has established these criteria, Section 3384
allows the orphans’ court to allow the political subdivision to do the following:
(1) Substitute other lands or property of at least equal size
and value held or to be acquired by the political subdivision
in exchange for the trust property in order to carry out the
trust purposes; (2) If other property is not available, sell the
property and apply the proceeds to carry out the trust
purposes; (3) In the event the original trust purpose is no
15
The DDPA defines a “public facility” as “any park, theatre, open air theatre, square,
museum, library, concert hall, recreation facility or other public use.” 53 P.S. § 3381.
[J-125A-L-2016] - 15
longer practicable or possible or in the public interest, apply
the property or proceeds therefrom in the case of a sale to a
different public purpose; [and] (4) Relinquish, waive or
otherwise quitclaim all right and title of the public in and to
such land and buildings as have been apparently dedicated
but for which no formal acceptance appears of record:
Provided, only, That the court is satisfied upon hearing the
evidence that there is no acceptance by implication arising
out of public user or otherwise, the court shall also determine
the consideration, if any, to be paid to the political
subdivision.
Id.
Section 3386 of the DDPA reserves to political subdivisions a right of control over
public lands16 which they acquire by purchase or condemnation:
Nothing in this act shall be construed to limit or affect the
control by a political subdivision of public lands or buildings
acquired by such political subdivision by purchase or
condemnation.
Id. § 3386. Although this provision facially excludes from the scope of the DDPA any
lands which a political subdivision acquires by purchase or condemnation, as discussed
at greater length herein, in Erie Golf Course we did not interpret Section 3386 in that
broad manner.
In the instant case, to adjudicate the Borough’s claim of relief under the DDPA,
the orphans’ court looked to Erie Golf Course.17 The orphans’ court regarded this case
16
The DDPA defines lands as “all real estate, whether improved or unimproved.” 53
P.S. § 3381.
17
In Erie Golf Course, our Court considered whether the city could obtain authorization
from the orphans’ court under the DDPA to sell a golf course which it had purchased
from a private club, and which the city had maintained for 80 years as a public golf
course as required by a restrictive covenant in the deed of conveyance. In brief, our
Court ruled therein that the DDPA applied to all dedications of property to public use,
whether or not there was a formal record of such a dedication by the public governing
body which was responsible for administering the property as trustee for the benefit of
the public; that the DDPA statutorily incorporated principles of the venerable common
law public trust doctrine, and, to the extent that it modified that doctrine, superseded it;
that the orphans’ court had “controlling discretion” to decide whether to permit the sale
(continued…)
[J-125A-L-2016] - 16
as establishing that it, not the Borough, possessed the ultimate discretion to determine
whether the park property was dedicated to public use as required by Section 3382 of
the DDPA, and whether the Borough met the required criteria to sell the park property
as set forth in Section 3384 of that law — i.e., whether its original use “is no longer
practicable or possible or has ceased to serve the public interest.” Orphans’ Court
Opinion, 10/7/10, at 13.
Noting that our Court in Erie Golf Course failed to define what constitutes a
“dedication to public use” under Section 3382, the orphans’ court utilized a definition
offered by the Commonwealth Court. See White v. Twp. of Upper St. Clair, 799 A.2d
188, 193 (Pa. Cmwlth. 2002) (“Dedication may be found in a single act, such as the
giving of a deed or the recording of a plan, or it may be found from a series of acts, all
consistent with and pointing to the intention to dedicate.”). Accordingly, to determine if
the park had been dedicated to public use, the court considered the Borough’s stated
reasons for acquiring the land to create the park — to expand the available land in the
Borough which could be utilized for recreation activities, historical, and conservation
purposes — as well as the Borough’s lengthy history of maintaining and making
improvements to the park, and the continuous recreational and other public uses of the
park by the community. Although the court noted that certain areas of the park were
used more heavily by patrons — such as the walking trail, the areas around the Victims
of Violence Memorial, the ponds, and the parking areas — the court nonetheless
concluded that the public had always been given access to the entire park property and
(…continued)
of property held in trust for the benefit of the public; and that Section 3386 of the DDPA
did not exclude from the DDPA’s scope of coverage purchased property which is held
for public trust purposes. Erie Golf Course, 992 A.2d at 86-89 & n.14. The Borough
filed an amicus brief in that case.
[J-125A-L-2016] - 17
used those other areas from time to time. Consequently, the court concluded that the
park property, as a whole, was dedicated to public use.
The court next considered whether the use of the park property for public
purposes had become impossible, impracticable, or no longer served the public interest.
Observing that there was a complete lack of legal authority regarding the burden of
proof the Borough had to meet to demonstrate these factors, the court chose to apply a
preponderance of the evidence standard. The court rejected the Borough and
Developers’ argument that the contaminated soil in the western portion of the park
rendered the park, as a whole, unsuitable for its continued use by the public. The court
found that, even after both environmental assessments identified the presence of heavy
metals and toxic waste imbedded in the soil, the Borough took no action to restrict the
public’s access to the whole park, including its western areas which were the most
heavily polluted, and the Borough continued to maintain the park so that it was open for
the same public activities for which it had historically been used.
Moreover, the court noted that the Golder assessment found nothing which
demonstrated that the park’s use by the public — the majority of which, as Golder
determined, was for brief periods of time ten minutes or less — posed any substantial
health risk to patrons, even those who continued to use the western areas of the park.
Accordingly, in the court’s view, because the evidence of record showed the public use
to which the park was dedicated remained unchanged even after the identification of the
contaminated soil, the Borough failed to demonstrate by a preponderance of the
evidence that the park’s original use was impracticable or impossible, or that the park
had ceased to serve the public’s interest. Hence, the court ruled that the Borough did
not have authority under the DDPA to sell any of the park property to the Developers.
[J-125A-L-2016] - 18
The Borough and Developers appealed to the Commonwealth Court, which
reversed in a unanimous en banc decision.18 Borough of Downingtown v. Friends of
Kardon Park, 55 A.3d 163 (Pa. Cmwlth. 2012) (“Downingtown I”). While the orphans’
court based its decision entirely on the DDPA, given that the Borough had filed its
petition seeking relief under that act, the Commonwealth Court, of its own volition,
introduced the question of the effect the Project 70 Act would have on the Borough’s
right to dispose of the Northern Parcels; and, over the opposition of Objectors,
entertained an argument from the Borough and Developers that, since the Borough had
acquired the Southern Parcels by eminent domain, the Borough had the right to dispose
of the Southern Parcels under Section 310(a) of the Eminent Domain Code governing
disposition of “abandoned” property. See 26 Pa.C.S. § 310(a).19 20
18
Judge McCullough was the author of the decision, and she was joined by then
President Judge Pellegrini, and Judges Leadbetter, Cohn Jubelirer, Simpson, Brobson
and Covey.
19
This section provides:
(a) Disposition of property.—If a condemnor has
condemned a fee and then abandons the purpose for which
the property has been condemned, the condemnor may
dispose of it by sale, lease, gift, devise or other transfer with
the following restrictions:
(1) If the property is undeveloped or has not
been substantially improved, it may not be
disposed of within ten years after
condemnation without first being offered to the
condemnee at the same price paid to the
condemnee by the condemnor.
(2) If the property is located outside the
corporate boundaries of a county of the first or
second class and is undeveloped or has not
been substantially improved and was devoted
to agricultural use at the time of the
condemnation, it may not be disposed of within
21 years after condemnation without first being
(continued…)
[J-125A-L-2016] - 19
With respect to the Northern Parcels and the Project 70 Act, the Commonwealth
Court, noting that these parcels had been acquired by Project 70 Act funds, concluded
that the orphans’ court erred in failing to consider the impact of the Project 70 Act on the
Borough’s right to convey the parcels under the DDPA.21 The Commonwealth Court
opined that Section 3946.20 of the Project 70 Act required the express approval of the
General Assembly in order for the owner of lands acquired through the use of Project 70
Act funds to dispose of them. The court reasoned that neither the common law public
trust doctrine, nor the DDPA — which the court, quoting from our decision in Erie Golf
Course, found to incorporate the “‘salient common-law principles’ of the public trust
doctrine” — restricted the Borough from selling Northern Parcel UPI 11-4-13 since the
General Assembly had released it from Project 70 Act restrictions in 1999, and
purportedly “specifically authorized” the conveyance of this parcel to Developers.
Downingtown I, 55 A.3d at 173 (quoting Erie Golf Course, 992 A.2d at 86).
The court also found support for this conclusion in Section 3386 of the DDPA,
which provides that “[n]othing in this act shall be construed to limit or affect the control
(…continued)
offered to the condemnee at the same price
paid to the condemnee by the condemnor.
26 Pa.C.S. § 310(a). Problematically, as discussed more fully herein, the
condemnations of these parcels were effective in the 1970s, and this section is
applicable only to “condemnations effected on or after” September 1, 2006. Act of May
4, 2006, P.L. 112, No. 34 § 6.
20
The orphans’ court did not address the issue of Section 310(a)’s applicability in its
opinion, as it was not raised as a basis for relief in the Borough’s petition in the orphans’
court; rather, it was mentioned for the first time in a pretrial memorandum filed by
Developers. Although Objectors argued to the Commonwealth Court that this issue was
waived as, in their view, it was being presented for the first time on appeal, the
Commonwealth Court rejected that claim, and, as no party presently asks us to revisit
this question, we do not address it.
21
Although recognizing that it was raising this issue sua sponte, the court considered
its remand as adequately permitting the parties and the orphans’ court the opportunity
to fully consider this question. Downingtown I, 55 A.3d at 174 n.14.
[J-125A-L-2016] - 20
by a political subdivision of public lands or buildings acquired by such political
subdivision by purchase or condemnation,” 53 P.S. § 3386, and language in Erie Golf
Course interpreting that section, where we observed that it was “most reasonable to
construe [Section 3386] as redressing a concern for the preservation of such rights and
interests as a political subdivision may have acquired in connection with a purchase.”
Erie Golf Course, 992 A.2d at 88. In the Commonwealth Court’s estimation, the use of
Project 70 Act funds to acquire the Northern Parcels and the General Assembly’s
release of them from Project 70 Act restrictions constituted a conferral of such rights to
the Borough that “may well be the dispositive factors with respect to these parcels.”
Downingtown I, 55 A.3d at 173 n.16. The court concluded that, because the orphans’
court should have considered the provisions of the Project 70 Act in conjunction with the
DDPA in determining whether the Borough had the authority to convey the Northern
Parcels to the Developer, it deemed it necessary to remand to the orphans’ court for
that assessment; hence, it vacated the order of the orphans’ court with respect to the
Northern Parcels.
Regarding the Southern Parcels, the Commonwealth Court found that the Project
70 Act did not apply since they were acquired through eminent domain, and there was
no evidence that Project 70 Act funds were used to pay the condemnees. However, the
court observed that Section 310(a) of the Eminent Domain Code permits a
governmental body to sell property acquired by condemnation if the public purpose for
which it was condemned has been abandoned, and the other applicable conditions
enumerated in Section 310(a) are met. Also, the court noted that “there must be an
intent to abandon the condemned property coupled with external acts to achieve that
end; mere non-use or lapse of time is not an abandonment.” Id. at 175. While the
Commonwealth Court deemed these determinations to be ones for the finder of fact, it
[J-125A-L-2016] - 21
observed that, in this case, the orphans’ court failed to make any findings regarding
these matters, and did not consider whether the provisions of the DDPA would
supersede the Eminent Domain Code; thus, the court vacated the orphans’ court’s order
with respect to the Southern Parcels and remanded to the orphans’ court for further
proceedings on these questions. The Commonwealth Court reiterated that our Court’s
statements in Erie Golf Course with respect to Section 3386’s potential preservation of
property rights acquired by a municipality, which it viewed as potentially including a right
to freely dispose of property under Section 310(a), “could be the dispositive factor” with
respect to the validity of the proposed sale of the Southern Parcels to the Developers.
Id. at 175 n.19.
Lastly, the Commonwealth Court found that, because the easements granted to
the Developers over the Meisel Parcel were “ancillary to the uses on the other parcels,”
it was necessary to vacate the orphans’ court’s order with respect to those easements
and to remand for that court to consider “whether the construction, maintenance and
utility easements as well as permission to discharge storm water into the two lakes are
inconsistent with the use of the parcel as parkland.” Id. at 176.22
22
The Commonwealth Court addressed only the question of whether the Borough’s
grant of the easements over the Meisel Parcel was permissible under the DDPA.
However, while the Borough and Developers’ appeal in Downingtown I was pending
before the Commonwealth Court, the Borough and Developers filed another petition in
the orphans’ court seeking a ruling that its approval was not required for the grant of the
easements over the Meisel Parcel or the other easements on Northern Parcel UPI 40-1-
23.1. Judge Platt granted the petition, finding that the DDPA was not applicable to the
easements, reasoning that the grant of the easements “did not constitute a sale or a
change in the use of the property.” Orphans’ Court Opinion, 11/21/13, at 14. A panel of
the Commonwealth Court reversed in a unanimous unpublished memorandum opinion,
also authored by Judge McCullough, which noted that “[a]t 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.” In re Council of Borough of Downingtown, No. 2205 C.D. 2011 at 3
(unpublished memorandum filed June 18, 2013). The panel remanded for further
(continued…)
[J-125A-L-2016] - 22
Subsequent to the Commonwealth Court’s decision in Downingtown I, the
General Assembly enacted legislation removing some of the Project 70 Act restrictions
from Northern Parcel UPI 40-1-23.1.23 See Act of Oct. 24, 2012, P.L. 1293, No. 162,
§ 6. However, this legislation required the following additional conditions be met: the
Borough receive equal to or greater than the fair market value for the portion of the park
property on which Project 70 Act restrictions were removed; the Borough reserve, via
deed restriction, a minimum of 20 acres of current park property for continued use as a
public park; the Borough deposit the revenue realized from the sale of Project 70 Act
properties into an interest bearing account, and expenditure of monies in that account
be restricted to making improvements to the park in accordance with a development
plan approved by the Department of Conservation and Natural Resources (“DCNR”);
and, after five years, the Borough disgorge any funds left in that account to the DCNR to
be used to fund general conservation and recreation grants. Id.
On remand from the Commonwealth Court, the orphans’ court, following the
Commonwealth Court’s directive, first addressed whether the Eminent Domain Code
superseded the DDPA and, thus, permitted the Borough to sell the Southern Parcels
without its approval. The Borough and Developers, citing Section 102 of the Eminent
(…continued)
proceedings in that case so that the orphans’ court could make specific findings with
respect to the DDPA’s application to the grant of both easements. After remand, that
case was consolidated for disposition by the orphans’ court with the cases remanded to
it in Downingtown I.
23
Although the legislation does not specifically refer to this parcel by its UPI number,
the orphans’ court, on remand from the Commonwealth Court, credited the testimony of
a professional engineer, who had prepared the official description of the property to be
released under the 2012 legislation, that the physical description of the property
contained therein was the same as the land which constituted tax parcel UPI 40-1-23.1.
Orphans’ Court Opinion, 11/21/13, at 12.
[J-125A-L-2016] - 23
Domain Code,24 contended that the code provided the “complete and exclusive
procedure” governing how a municipality may dispose of condemned lands, whereas
Objectors countered that the DDPA and the Eminent Domain Code must be construed
together and that the DDPA applied to the Southern Parcels, as they had been
condemned specifically to create a park and the land continued to be actively used for
that purpose. Orphans’ Court Opinion, 11/21/13, at 6. The orphans’ court sided with
Objectors and found that the DDPA applied, notwithstanding the purported exclusivity
language in the Eminent Domain Code.
The orphans’ court explicitly rejected the Commonwealth Court’s suggestion in
Downingtown I that Section 3386 of the DDPA potentially precluded the application of
the DDPA to property acquired by condemnation. The court noted that, in Erie Golf
Course, our Court recognized that Section 3386, while preserving all rights and interests
a municipality acquired in a piece of property through its purchase, nevertheless
considered such purchased property to be subject to the provisions of the DDPA. See
id. at 5-6 (“We do not believe, however, that [Section 3386] was intended to remove
entirely from the Act’s purview (and thus maintain inflexible irrevocability relative to) any
and all trust property that may in any sense of the word be said to have been
purchased.” (quoting Erie Golf Course, 992 A.2d at 88)).25 The court deemed this
24
This section states: “[t]his title provides a complete and exclusive procedure and law
to govern all condemnations of property for public purposes and the assessment of
damages.” 26 Pa.C.S. § 102.
25
While we recognized in Erie Golf Course that the General Assembly, through the
enactment of the DDPA, desired to give municipalities additional options by which they
could seek to divert public trust property from its intended use beyond those available to
them under the common law public trust doctrine, we did not read Section 3386 of the
DDPA as excluding from orphans’ court review a political subdivision’s diversion of
public trust property which it initially acquired through purchase. Rather, we considered
the fact that the purchased property had been dedicated to public use by the city after
purchase as the dispositive consideration implicating the protective provisions of the
(continued…)
[J-125A-L-2016] - 24
reasoning equally applicable to property which a municipality has acquired through
condemnation; hence, it concluded that a municipality’s rights to dispose of condemned
property were constrained by the provisions of the DDPA, and, thus, within its
jurisdiction to determine:
In this case, the parcels acquired through condemnation
were acquired for parkland purposes. As I found in the
October 7, 2010 Opinion, the DDPA applies to the
disposition of the Kardon Park parcels that have been used
as parkland. Without the protection afforded public property
by the DDPA, a municipality would have unchecked power to
dispose of parkland and other trust property. The
Commonwealth Court suggested that Section [3386] of the
DDPA gives the Borough unfettered discretion to dispose of
the Southern Parcels. 55 A.3d at 175, n: 19. This is
inconsistent with the Erie Court's reluctance to find that
Section [5536] removed "entirely from the [DDPA]'s purview"
certain trust property. Erie, supra. With the guidance from
the Supreme Court in Erie regarding Section [3386] of the
DDPA, I find that the Eminent Domain Code does not
exempt the Southern Parcels from the applicability of the
DDPA. Accordingly, the DDPA applies and Orphans' Court
continues to have jurisdiction in this case.
Id. at 7.26
(…continued)
DDPA due to the substantial public interests created by the dedication. See 992 A.2d at
88-89.
26
The orphans’ court, apparently uncertain as to whether the Commonwealth Court’s
remand order in Downingtown I also required it to make findings as to whether the park
property could be deemed abandoned for purposes of Section 310(a) of the Eminent
Domain Code, proceeded to consider that question, utilizing the Commonwealth Court’s
two-part test for abandonment recited in Downingtown I — i.e., the condemnor must
show an intent to abandon the condemned property, and there must be external acts to
accomplish the abandonment, other than non-use of the property or the passage of
time. The orphans’ court found that the Borough had owned the Southern Parcels for
more than 21 years, and demonstrated an intent to abandon those lands as far back as
1999, when it began preparing the park for commercial use. The orphans’ court
concluded that the Borough’s entry into the agreements of sale for the lands constituted
acts in furtherance of its intention to abandon them.
(continued…)
[J-125A-L-2016] - 25
Next, per the Commonwealth Court’s instructions, the orphans’ court considered
whether, in light of the Project 70 Act releases, the Borough was nonetheless required
to obtain its approval under the DDPA for sale of the Northern Parcels, and found that
the Borough was not required to do so. The court observed that the Project 70 Act “has
specific guidelines for disposing of property acquired with funds made available
pursuant to the Act,” and that it had not previously considered the application of those
provisions when rendering its prior decision, inasmuch as the Borough had not argued
the applicability of the Project 70 Act in those proceedings. Id. at 13. The court, noting
the Commonwealth Court’s finding in Downingtown I that the General Assembly’s
passage of legislation in 1999 releasing Northern Parcel UPI 11-4-13 from Project 70
Act restrictions “specifically authorizes the Borough’s conveyance of [that parcel] to
Developers and that neither the DDPA nor the common law public trust doctrine
prohibits the sale of parcel 11-4-13 to Developers,” decided that the legislature’s 2012
enactment releasing Northern Parcel UPI 40-1-23.1 from Project 70 Act restrictions
likewise authorized the Borough to dispose of those parcels.27 Id.
Finally, the orphans’ court addressed the question of whether the easements
granted to Developers for the Meisel Parcel were inconsistent with the use of the parcel
(…continued)
Tangentially, the orphans’ court additionally opined that, if the Commonwealth
Court found the Borough’s right to dispose of these parcels was exclusively conferred
by the Eminent Domain Code, then the Objectors had no standing to challenge the sale
as they are not condemnees, who are the only parties with standing under that code to
make such a challenge. While, on appeal, the Commonwealth Court reversed this
aspect of the orphans’ court’s decision, we did not grant allowance of appeal to review
that question.
27
The orphans’ court additionally ruled that Objectors did not have standing to seek
enforcement of Project 70 Act restrictions, as only the Commonwealth had statutory
authority under 72 P.S. § 3946.20(e) to seek enforcement relief from a court, or to
pursue other remedies. On appeal, the Commonwealth Court reversed this aspect of
the orphans’ court’s decision; however, we did not grant allocatur to review that part of
the Commonwealth Court’s decision.
[J-125A-L-2016] - 26
as parkland.28 The court determined that the expert testimony it had received during the
remand hearing established that the easements would not be inconsistent with the
Meisel parcel’s current use as public parkland. Accordingly, in the orphans’ court’s
view, the DDPA was not implicated, and so it found that there was no need for it to
conduct further proceedings under that act in order for it to determine if the conveyance
of the easements by the Borough was permissible thereunder. Given that neither party
was wholly successful in obtaining their desired relief, both parties appealed to the
Commonwealth Court.
Objectors as well as the Borough and Developers filed cross-appeals to the
Commonwealth Court, which considered the case en banc, and affirmed the orphans’
court’s rulings in a 4-3 per curiam decision in In re Borough of Downingtown, 116 A.3d
727 (Pa. Cmwlth. 2015) (“Downingtown II”).29 Therein, that tribunal first considered the
Borough and Developers’ challenge to the orphans’ court’s determination that the DDPA
mandated that court’s approval to dispose of the Southern Parcels, which, as noted,
had been acquired via condemnation. The Commonwealth Court first observed that the
DDPA applies to “[a]ll lands . . . dedicated to the public use,” and requires that “all such
lands . . . 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 a court order pursuant to this act.” Id. at 734 (citing Sections 3382 and
3383). Thus, the court deemed the DDPA to apply to the Southern Parcels because, in
28
Although, as indicated previously, see supra note 22, the orphans’ court had
consolidated the case involving the easements across Northern Parcel UPI 40-1-23.1,
inexplicably, it addressed only the easements across the Meisel Parcel.
29
The en banc panel was comprised of then-President Judge Pellegrini, and Judges
McGinley, Cohn-Jubelirer, Simpson, Brobson, McCullough, and Covey. To the per
curiam opinion, Judge Simpson filed a concurring and dissenting opinion, joined by
Judge McGinley, and Judge McCullough filed a dissenting opinion.
[J-125A-L-2016] - 27
With respect to the Northern Parcels and the Project 70 Act, the Commonwealth
Court, noting that these parcels had been acquired by Project 70 Act funds, concluded
that the orphans’ court erred in failing to consider the impact of the Project 70 Act on the
Borough’s right to convey the parcels under the DDPA.21 The Commonwealth Court
opined that Section 3946.20 of the Project 70 Act required the express approval of the
General Assembly in order for the owner of lands acquired through the use of Project 70
Act funds to dispose of them. The court reasoned that neither the common law public
trust doctrine, nor the DDPA — which the court, quoting from our decision in Erie Golf
Course, found to incorporate the “‘salient common-law principles’ of the public trust
doctrine” — restricted the Borough from selling Northern Parcel UPI 11-4-13 since the
General Assembly had released it from Project 70 Act restrictions in 1999, and
purportedly “specifically authorized” the conveyance of this parcel to Developers.
Downingtown I, 55 A.3d at 173 (quoting Erie Golf Course, 992 A.2d at 86).
The court also found support for this conclusion in Section 3386 of the DDPA,
which provides that “[n]othing in this act shall be construed to limit or affect the control
(…continued)
offered to the condemnee at the same price
paid to the condemnee by the condemnor.
26 Pa.C.S. § 310(a). Problematically, as discussed more fully herein, the
condemnations of these parcels were effective in the 1970s, and this section is
applicable only to “condemnations effected on or after” September 1, 2006. Act of May
4, 2006, P.L. 112, No. 34 § 6.
20
The orphans’ court did not address the issue of Section 310(a)’s applicability in its
opinion, as it was not raised as a basis for relief in the Borough’s petition in the orphans’
court; rather, it was mentioned for the first time in a pretrial memorandum filed by
Developers. Although Objectors argued to the Commonwealth Court that this issue was
waived as, in their view, it was being presented for the first time on appeal, the
Commonwealth Court rejected that claim, and, as no party presently asks us to revisit
this question, we do not address it.
21
Although recognizing that it was raising this issue sua sponte, the court considered
its remand as adequately permitting the parties and the orphans’ court the opportunity
to fully consider this question. Downingtown I, 55 A.3d at 174 n.14.
[J-125A-L-2016] - 20
by a political subdivision of public lands or buildings acquired by such political
subdivision by purchase or condemnation,” 53 P.S. § 3386, and language in Erie Golf
Course interpreting that section, where we observed that it was “most reasonable to
construe [Section 3386] as redressing a concern for the preservation of such rights and
interests as a political subdivision may have acquired in connection with a purchase.”
Erie Golf Course, 992 A.2d at 88. In the Commonwealth Court’s estimation, the use of
Project 70 Act funds to acquire the Northern Parcels and the General Assembly’s
release of them from Project 70 Act restrictions constituted a conferral of such rights to
the Borough that “may well be the dispositive factors with respect to these parcels.”
Downingtown I, 55 A.3d at 173 n.16. The court concluded that, because the orphans’
court should have considered the provisions of the Project 70 Act in conjunction with the
DDPA in determining whether the Borough had the authority to convey the Northern
Parcels to the Developer, it deemed it necessary to remand to the orphans’ court for
that assessment; hence, it vacated the order of the orphans’ court with respect to the
Northern Parcels.
Regarding the Southern Parcels, the Commonwealth Court found that the Project
70 Act did not apply since they were acquired through eminent domain, and there was
no evidence that Project 70 Act funds were used to pay the condemnees. However, the
court observed that Section 310(a) of the Eminent Domain Code permits a
governmental body to sell property acquired by condemnation if the public purpose for
which it was condemned has been abandoned, and the other applicable conditions
enumerated in Section 310(a) are met. Also, the court noted that “there must be an
intent to abandon the condemned property coupled with external acts to achieve that
end; mere non-use or lapse of time is not an abandonment.” Id. at 175. While the
Commonwealth Court deemed these determinations to be ones for the finder of fact, it
[J-125A-L-2016] - 21
observed that, in this case, the orphans’ court failed to make any findings regarding
these matters, and did not consider whether the provisions of the DDPA would
supersede the Eminent Domain Code; thus, the court vacated the orphans’ court’s order
with respect to the Southern Parcels and remanded to the orphans’ court for further
proceedings on these questions. The Commonwealth Court reiterated that our Court’s
statements in Erie Golf Course with respect to Section 3386’s potential preservation of
property rights acquired by a municipality, which it viewed as potentially including a right
to freely dispose of property under Section 310(a), “could be the dispositive factor” with
respect to the validity of the proposed sale of the Southern Parcels to the Developers.
Id. at 175 n.19.
Lastly, the Commonwealth Court found that, because the easements granted to
the Developers over the Meisel Parcel were “ancillary to the uses on the other parcels,”
it was necessary to vacate the orphans’ court’s order with respect to those easements
and to remand for that court to consider “whether the construction, maintenance and
utility easements as well as permission to discharge storm water into the two lakes are
inconsistent with the use of the parcel as parkland.” Id. at 176.22
22
The Commonwealth Court addressed only the question of whether the Borough’s
grant of the easements over the Meisel Parcel was permissible under the DDPA.
However, while the Borough and Developers’ appeal in Downingtown I was pending
before the Commonwealth Court, the Borough and Developers filed another petition in
the orphans’ court seeking a ruling that its approval was not required for the grant of the
easements over the Meisel Parcel or the other easements on Northern Parcel UPI 40-1-
23.1. Judge Platt granted the petition, finding that the DDPA was not applicable to the
easements, reasoning that the grant of the easements “did not constitute a sale or a
change in the use of the property.” Orphans’ Court Opinion, 11/21/13, at 14. A panel of
the Commonwealth Court reversed in a unanimous unpublished memorandum opinion,
also authored by Judge McCullough, which noted that “[a]t 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.” In re Council of Borough of Downingtown, No. 2205 C.D. 2011 at 3
(unpublished memorandum filed June 18, 2013). The panel remanded for further
(continued…)
[J-125A-L-2016] - 22
be supported by the record. Accordingly, the court affirmed the orphans’ court’s ruling
that the DDPA was not implicated by the Borough’s grant of the easements.32
All parties filed petitions for allowance of appeal from the Commonwealth Court’s
order affirming the orphans’ court. We granted the joint petitions for allowance of
32
Judge Simpson authored a concurring and dissenting opinion, joined by Judge
McGinley, in which he joined the majority opinion with respect to its resolution of the
issues involving the Northern Parcels and the Meisel Parcel; however, he dissented as
to the majority’s ruling regarding the Southern Parcels. Judge Simpson noted that there
is a conflict between the DDPA and the Eminent Domain Code as to which entity has
controlling discretion to decide when property held in public trust by a governmental
body is no longer being used for a public purpose and may be disposed of. As
interpreted by Erie Golf Course, the DDPA vests such decision-making authority in the
orphans’ court, whereas, under the Eminent Domain Code, the governmental body as
condemnor retains sole authority to decide whether the public use of the property has
been abandoned. Judge Simpson suggested that, to resolve this apparent statutory
conflict, it would be proper to apply the approach taken by our Court in Commonwealth
v. Ogontz, 483 A.2d 448 (Pa. 1984), and reaffirmed in SEPTA v. City of Philadelphia,
101 A.3d 79 (Pa. 2014), which requires that the statutory language first be examined to
see if it can be determined that the legislature intended one entity to have preeminent
decision-making authority. Employing this approach, Judge Simpson concluded that
the language in Section 3386 of the DDPA — which states that “[n]othing in this act
shall be construed to limit or effect the control by a political subdivision of public lands . .
. acquired by such political subdivision by purchase or condemnation,” 53 P.S. § 3386
— indicates that the condemning municipality should be the decision-maker regarding
public trust property acquired by condemnation. Judge Simpson considered our
decision in Erie Golf Course to be distinguishable as, given the ambiguity in the term
“purchase” as used in the DDPA, he viewed it as an attempt by our Court to protect a
political subdivision from being subject to the more restrictive pre-existing common law
public trust doctrine which more heavily curtailed discretionary rights to dispose of
purchased property, while not entirely excluding such purchased property from the
scope of the DDPA’s application. By contrast, Judge Simpson discerned no ambiguity
in the term “condemnation” and, hence, he considered Section 3386 to clearly exclude
condemned property from its ambit.
Judge McCullough joined the majority opinion in all respects except for its
affirmance of the orphans’ court decision regarding the grant of the easements for the
Meisel Parcel and Northern Parcel 40-1-23.1. In Judge McCullough’s view, the
easements violated the DDPA because they were granted solely for the benefit of
Developers so that they could comply with the open space requirements of the
Borough’s ordinance; thus, she opined that the easements impermissibly favored a
private use of public land.
[J-125A-L-2016] - 31
appeal of the Borough and Developers at 16-19 MAP 2016, and the petitions of
Objectors at 12-15 MAP 2016 and 20-23 MAP 2016, in order to consider the following
issues. See In re Borough of Downingtown, 132 A.3d 978 (Pa. 2016) (order).
Appeal of Borough and Developers at 16-19 MAP 2016:
1. Where a municipality has satisfied the requirement to
dispose of condemned property under Section 310(a) of the
Eminent Domain Code by abandoning the purpose for which
the property was condemned, does the [DDPA] nonetheless
require judicial approval before a municipality may dispose
of that property?
2. Where a municipality intends to abandon property
acquired by condemnation and where that intent is coupled
with external acts to achieve such abandonment, has the
purpose of the property been “abandon[ed]” for purposes of
Section 310(a) of the Eminent Domain Code?
Appeal of Objectors at 12-15 MAP 2016 and 20-23 MAP 2016:
1. Does the removal of Project 70 Act deed restrictions also
remove all public trust interests in dedicated parkland, such
that judicial review of the sale of such parkland would no
longer be required under the [DDPA]?
2. May municipalities convey private development
easements over public parkland without first obtaining
Orphans’ Court approval under the DDPA?
II. Analysis
A. Appeal of Borough and Developer33
Both of the issues raised by the Borough and Developers involve the application
of Section 310(a) of the Eminent Domain Code to the question of the Borough’s right to
dispose of the Southern Parcels, because the Borough acquired title to those parcels
33
The Borough and Developers have filed joint briefs with our Court.
[J-125A-L-2016] - 32
its view, the evidence of record, recited by the orphans’ court in its first opinion,
established “that the Borough has committed the Southern Parcels to public use and the
public has accepted this use.” Id. at 736.
The court deemed Section 3384 of the DDPA to govern the Borough’s proposed
sale of the Southern Parcels. The court noted that, in order for a political subdivision to
convey property under the DDPA, it must initially meet the requirements of the first
paragraph of Section 3384, which necessitates that the political subdivision show that
“continuation of the original use of the property is no longer practicable or possible and
has ceased to serve the public interest.” Id. at 735 (quoting Section 3384). The court
agreed with the orphans’ court’s finding that the Borough could not show that the
continued use of these parcels was no longer practicable or possible, nor could it
demonstrate that Kardon Park ceased to serve the public interest. Id.
In the court’s view, inasmuch as the Borough did not meet Section 3384’s
threshold criteria, Section 3386 — reserving political subdivision’s rights in property
acquired by purchase or condemnation — was not implicated. Even so, the court
considered the application of Section 3386 as it was interpreted by our Court in Erie
Golf Course. The Commonwealth Court agreed with the orphans’ court’s extension of
our Court’s holding in that case to property acquired by condemnation. Embracing the
orphans’ court’s rationale, the court found that, since our Court had declined to read
Section 3386 as excluding purchased property from the DDPA, it would be “illogical to
conclude that the same reasoning would not apply to property acquired by
condemnation.” Id. at 736.
Moreover, the court rejected the contention by the Borough and Developers that
Section 310(a) of the Eminent Domain Code compelled a different result. The court
considered this section as applicable only to sales of condemned land for which the
[J-125A-L-2016] - 28
public use of that land had been abandoned. The court found that the purpose for
which the Southern Parcels were condemned, as offered by the Borough in its notice of
condemnation, was “to expand and enlarge recreation places and space within the
borough limits, [and that] the Borough achieved that purpose and Kardon Park
continues to satisfy that purpose in the present day.” Id. at 737 (internal quotation
marks omitted). The court therefore affirmed the orphans’ court’s order requiring the
Borough obtain its approval for the sale of the Southern Parcels.
Regarding the issue of whether the Project 70 Act or the DDPA governed the
Borough’s right to sell the Northern Parcels, the court recounted that, in Downingtown I,
it had ruled that the General Assembly’s release, via legislation, of Northern Parcel UPI
11-4-13 from Project 70 Act restrictions was controlling of the question of the Borough’s
right to dispose of that parcel, and that neither the common law public trust doctrine nor
the DDPA precluded the sale. The court agreed with the lower court’s determination
that the General Assembly’s 2012 legislative release of Northern Parcel UPI 40-1-23.1
from Project 70 Act restrictions had the same legal effect and, thus, that the Borough
could freely convey that parcel as well, except for the portion of that parcel which the
Borough would retain as a public park in order to meet the condition in the 2012
legislation that the Borough keep 20 acres for that purpose. The court reasoned that
“[t]he releases by the General Assembly essentially voided the dedication required
under the Project 70 Act and permit[ted] the conveyance of these parcels. To hold that
these parcels are also subject to the disposition requirements of the DDPA would
render [Section 3946.20 of the Project 70 Act] a nullity.” Id. at 739.
Additionally, the court viewed this conclusion as consistent with the principle of
statutory construction set forth in Section 1933 of the Statutory Construction Act 30 —
30
This section provides:
(continued…)
[J-125A-L-2016] - 29
that whenever two statutes are irreconcilable, the statute which is more specific prevails
— and the court, ostensibly regarding the DDPA and the Project 70 Act as
irreconcilable, found the Project 70 Act, which specifically applied to property purchased
with Project 70 Act funds, controlled over the more generally applicable DDPA.
Consequently, the court held that the orphans’ court did not err in concluding that, in
light of the legislature’s release of the Project 70 Act restrictions on the Northern
Parcels, orphans’ court approval under the DDPA was not required for the Borough to
sell them to Developers.
Lastly, the court purported to address the question of whether the Borough’s
grant of easements to the Developers over both the Meisel Parcel and Northern Parcel
UPI 40-1-23.1 required orphans’ court approval. In conducting its review, however, the
court was limited to the orphans’ court’s findings regarding the Meisel Parcel as, in its
opinion, it had not discussed the impact of the easements on Northern Parcel UPI 40-1-
23.1.31 The Commonwealth Court nevertheless found the orphans’ court’s findings to
(…continued)
§ 1933. Particular controls general
Whenever a general provision in a statute shall be in conflict
with a special provision in the same or another statute, the
two shall be construed, if possible, so that effect may be
given to both. If the conflict between the two provisions is
irreconcilable, the special provisions shall prevail and shall
be construed as an exception to the general provision,
unless the general provision shall be enacted later and it
shall be the manifest intention of the General Assembly that
such general provision shall prevail.
1 Pa.C.S. § 1933
31
As set forth supra, the orphans’ court discussed only the easements on the Meisel
Parcel.
[J-125A-L-2016] - 30
We therefore find it necessary to remand this matter to the Commonwealth Court for
additional proceedings so that the parties may present arguments to the tribunal on this
question, and for it to address, in the first instance, what impact, if any, the resolution of
this question has on its prior conclusion that orphans’ court approval was required under
the DDPA for the sale of the Southern Parcels, even though they were acquired by the
Borough through condemnation.
B. Appeal of Objectors
We turn now to the Objectors’ appeal. Notably, our resolution of this appeal is
unaffected by our conclusion that the parties and the Commonwealth Court erroneously
applied Section 310(a) of the Eminent Domain Code in the proceedings below.
1. The DDPA and the Project 70 Act restrictions38
We begin with the question of whether the General Assembly’s release of Project
70 Act restrictions on the Northern Parcels precludes the application of the DDPA to the
Borough’s sale of these parcels. Objectors Kim Manufacturing and Stewart Hall (“Kim
and Stewart”) argue that the Commonwealth Court in Downingtown II misapplied our
Court’s decision in Erie Golf Course by deeming the DDPA’s application to be
dependent on the manner in which the property is acquired by the political subdivision,
thereby disregarding the public purpose for which the property is subsequently
dedicated, and the corresponding interest the public acquires because of this
dedication. Kim and Stewart contend that the Commonwealth Court improperly
considered the Northern Parcels to have been dedicated when they were acquired, in
part, with Project 70 Act funds, and Project 70 Act deed restrictions were placed on the
38
Kim Manufacturing and Stewart Hall L.L.P. have filed a joint brief, and the Friends of
Kardon Park have filed their own separate brief.
[J-125A-L-2016] - 36
properties. Kim and Stewart aver that the imposition of these deed restrictions was
distinct from the dedication of the property which involved a series of actions on the part
of the Borough over many years, and included the use of federal and state grant monies
to undertake various improvements to the park, as well as the Borough’s own
maintenance activities and enhancements of the park. In Kim and Stewart’s view, our
Court in Erie Golf Course held that the application of the DDPA to the disposition of
dedicated public property is dependent on acts of dedication and is not triggered merely
by the insertion of Project 70 Act-like restrictions in a deed. Consequently, according to
Objectors, the DDPA continues to apply to the Northern Parcels, as they were
dedicated to use as a public park, even though the General Assembly removed the
formal Project 70 Act restrictions from them.
Kim and Stewart assail what they consider the Commonwealth Court’s further
disregard of our Court’s holding in Erie Golf Course that purchased properties which are
committed to the public trust should not be excluded from the scope of application of the
DDPA by Section 3386, which provides that the DDPA does not limit or affect a political
subdivision’s control of public lands it acquires through purchase (or condemnation).
Kim and Stewart assert the Commonwealth Court in Downingtown I — a decision that
tribunal relied on in Downingtown II for its holding regarding the Northern Parcels —
improperly found that their acquisition with Project 70 Act funds, and the legislature’s
subsequent release of Northern Parcel 11-4-13 via the 1999 legislation, were the crucial
factors determining their proper disposition. Instead, and again, Kim and Stewart
proffer that our Court actually held in Erie Golf Course that it was the dedication of a
property, and not the conditions of its original purchase, which were determinative of the
DDPA’s applicability.
[J-125A-L-2016] - 37
Kim and Stewart further argue that the Commonwealth Court “erroneously pitted
these laws against each other,” by viewing the Project 70 Act as in conflict with the
DDPA and considering the provisions of the Project 70 Act to control over those of the
DDPA. Kim and Stewart Brief at 40-41. Instead, Kim and Stewart contend, the two acts
can be read consistently so as to give effect to both. Kim and Stewart argue that the
Project 70 Act and the DDPA “regulate different aspects of the same properties.” Id.
Specifically, in Kim and Stewart’s view, the Project 70 Act establishes a contractual
relationship between the Commonwealth and municipalities — with respect to
properties acquired through those funds — via the deed restrictions which protect the
Commonwealth’s financial investment, and which only it can take legal action to
enforce. The DDPA, on the other hand, establishes a process for disposing of
properties dedicated to public use, and the public has been granted standing to enforce
these public rights. Kim and Stewart, thus, characterize the Commonwealth’s interest
under the Project 70 Act as pertaining only to its financial interests and not to the public
trust interests protected by the DDPA.
From Kim and Stewart’s perspective, the Commonwealth Court’s decision
nullifies the DDPA and turns the Project 70 Act into a tool by which public parks may be
sold with no judicial oversight simply because Project 70 Act money was used in their
acquisition, even if the amount of such funds was small in comparison to the investment
of other public funds in the park by the Commonwealth and the municipality. Kim and
Stewart point out this could imperil the 500 municipal parks it estimates have been built
throughout the Commonwealth using Project 70 Act funds, and would exclude the
judiciary and the public from participation in the disposition process, as the DDPA
requires; hence, it “would signal a statewide ‘cash for parks’ opportunity” which would
[J-125A-L-2016] - 38
undermine the land preservation goals which the Project 70 Act sought to accomplish.
Kim and Stewart Brief at 45.
In their joint brief, Objectors Friends of Kardon Park and Ann Feldman
(“Friends”), stress that the Commonwealth Court decision is inconsistent given that the
court also found that they had standing to challenge the sale, inasmuch as the Project
70 Act does not grant standing to citizens to challenge removal of Project 70 Act
restrictions, whereas the DDPA does grant such standing. Thus, according to Friends,
the Commonwealth Court’s finding that they had standing was based on an implicit
conclusion that the DDPA was applicable.39
Friends highlight the fact that Project 70 Act money paid for only one half of the
total cost of the acquisition of the Northern Parcels, while the Borough paid for the
remaining half, and, subsequent to their acquisition of the parcels, the Borough
expended significant monies to improve them. Friends claim that allowing the sale of
the Northern Parcels solely on the basis of the legislative release would disregard these
years of public investment, and the dedication and public use of the park. Echoing Kim
and Stewart’s contention in this regard, Friends maintain that this would contravene the
public purpose for which the original Project 70 Act funds were allocated — the
acquisition and preservation of parklands for public use. Relatedly, Friends also aver
that the orphans’ court in its initial decision correctly treated the park property as a
whole — i.e., as a single integrated park — and contend that allowing some of the park
parcels to be sold in a piecemeal fashion would disrupt the park’s continued use as
such.
Friends suggest that deeming the Project 70 Act release to trump the
requirements of the DDPA could constitute a violation of the separation of powers
39
Kim and Stewart endorse this argument as well in their brief.
[J-125A-L-2016] - 39
doctrine under Article V, Sections 1, 2, and 10 of the Pennsylvania Constitution,
inasmuch as it could usurp the judiciary’s obligation to decide whether the sale of a
piece of publicly dedicated property violates the common law public trust doctrine as
embodied in the DDPA.40 Friends postulate that allowing the Commonwealth Court’s
decision to stand could result in a situation where the orphans’ court refuses to allow the
sale of a piece of publicly dedicated property, which is also subject to Project 70 Act
restrictions, but subsequent legislative release of the property from its Project 70 Act
restrictions would be given controlling effect over this judicial decision and permit the
sale. Friends suggest that this scenario is avoidable only by recognizing that the DDPA
and the Project 70 Act can be construed in pari materia, with effect given to all of the
provisions of both statutes.41
The Borough and Developers respond that the decision by the Borough to accept
Project 70 Act funds to purchase the Northern Parcels constituted a commitment by the
Borough to use that land only for the specified Project 70 Act purposes, in this case
recreational use as a public park. Thus, the Borough and Developers argue that the
dedication was effected at the time the Northern Parcels were acquired with Project 70
funds and Project 70 Act restrictions, not through any later actions by the Borough or
the public. Consequently, they reason, when the legislature authorized their release
from Project 70 Act restrictions through the 1999 and 2012 legislation, and removed the
restrictive covenant in the deeds, this voided their dedication and permitted their
conveyance by the Borough. The Borough and Developers reason that, because
40
Although Friends consider the DDPA to be the vehicle by which the public trust
doctrine embodied in the Pennsylvania Constitution’s Environmental Rights Amendment
— Article I, Section 27 — is enforced, because, as we explain infra, we decide this case
solely on statutory grounds, we need not express an opinion on this question.
41
The Pennsylvania Land Trust has filed an amicus brief in support of the Objectors’
suggested pari materia construction of the Project 70 Act with the DDPA.
[J-125A-L-2016] - 40
via condemnation.34 In addition, the lower courts structured their analyses of the
applicability of the DDPA to the disposition of those parcels based on their consideration
of the interplay of the DDPA and Section 310(a). Our grant of allowance of appeal was
likewise predicated on a perceived need to resolve the legal question of whether the
Borough was required to obtain orphans’ court approval under the DDPA to sell these
parcels, as the lower courts concluded, or whether the Borough had the unfettered right
to sell them under Section 310(a). In their briefs to our Court, the parties’ arguments
retain that focus. Critically however, after further review, we conclude that Section
310(a) has no application to this matter.
Section 310(a) was enacted by Act 34 of 2006, Act of May 4, 2006, P.L. 112, No.
34, which repealed, in toto, the prior Eminent Domain Code, Act of June 22, 1964, Sp.
Sess., P.L. 84, No. 6 (as amended 26 P.S. §§ 1–101 to 1–903 (repealed)), and created
the present Eminent Domain Code, codified at Title 26 of the Pennsylvania
Consolidated Statutes, 26 Pa.C.S. §§ 101-1106. Section 6(1) of Act 34 expressly
provides that, except for a provision not relevant herein, all provisions of Title 26 created
by Act 34 “shall apply to all condemnations effected on or after the effective date” of the
Act, which was September 1, 2006. Act of May 4, 2006, P.L. 112, No. 34, § 6(1)
(emphasis added). Thus, the General Assembly unmistakably intended for Act 34 to
apply prospectively, only to those condemnations “effected” after September 1, 2006.
As recounted above, the declaration of taking for Southern Parcel UPI 11-4-14.2
was filed by the Borough in 1974, and the declaration of taking for Southern Parcel UPI
11-4-14 was filed by the Borough in 1977. Under the provisions of the Eminent Domain
Code of 1964, as revised in 1969, which were applicable during that time period, the
34
The Pennsylvania State Association of Township Supervisors has filed an amicus
brief addressing the interplay of Section 310(a) of the Eminent Domain Code and the
DDPA.
[J-125A-L-2016] - 33
filing of a declaration of taking “effected” the condemnation. See 26 P.S. § 1-402
(repealed) (“Condemnation, under the power of condemnation given by law to a
condemnor, which shall not be enlarged or diminished hereby, shall be effected only by
the filing in court of a declaration of taking, with such security as may be required under
section 403(a).” (emphasis supplied) (footnote omitted)).35 Hence, by the explicit terms
of the legislation creating the present Eminent Domain Code, the provisions of the
current code, including Section 310(a), do not apply to the condemnations of the
Southern Parcels since the condemnation of both was effected in the 1970s when the
Borough filed their respective declarations of taking. Therefore, the provisions of
Section 310(a) have no legal relevance to the Borough’s right to dispose of these
properties.
Moreover, Section 310(a) is not a mere reenactment of its statutory predecessor
in effect at the time of these parcels’ condemnation. See 26 P.S. § 1-410 (repealed).36
Act 34 repealed and supplanted this statute entirely with Section 310(a), which contains
35
Under the present Eminent Domain Code, a condemnation is likewise “effected” by
the filing of a declaration of taking. See 26 Pa.C.S. § 302(1) (“Condemnation under the
power of condemnation given by law to a condemnor shall be effected only by the filing
in court of a declaration of taking with the security required under section 303(a)
(relating to security required).”).
36
This section stated in relevant part:
If a condemnor has condemned a fee and thereafter
abandons the purpose for which the property has been
condemned, the condemnor may dispose of it by sale or
otherwise: Provided, however, That if the property has not
been substantially improved, it may not be disposed of within
three years after condemnation without first being offered to
the condemnee at the same price paid to the condemnee by
the condemnor . . . The condemnee shall be served with
notice of the offer in the same manner as prescribed for the
service of notices in subsection (b) of section 405 of this act,
and shall have ninety days after receipt of such notice to
make written acceptance thereof.
26 P.S. § 1-410(a) (repealed) (footnote omitted).
[J-125A-L-2016] - 34
similar, but nonetheless distinct, provisions.37 Therefore, it would be jurisprudentially
imprudent for us to presently interpret § 1-410 and consider its operation in conjunction
with the DDPA, based on the parties’ arguments with respect to Section 310(a). This is
particularly so given that the Commonwealth Court and orphans’ court decisions rested
entirely on their interpretation and construction of Section 310(a) in conjunction with the
DDPA. Furthermore, we have no advocacy from the parties on the prospectivity
question, as their arguments solely rest on the assumed applicability of Section 310(a).
37
Section 310(a) provides:
(a) Disposition of property.--If a condemnor has
condemned a fee and then abandons the purpose for which
the property has been condemned, the condemnor may
dispose of it by sale, lease, gift, devise or other transfer with
the following restrictions:
(1) If the property is undeveloped or has not been
substantially improved, it may not be disposed of within ten
years after condemnation without first being offered to the
condemnee at the same price paid to the condemnee by the
condemnor.
(2) If the property is located outside the corporate
boundaries of a county of the first or second class and is
undeveloped or has not been substantially improved and
was devoted to agricultural use at the time of the
condemnation, it may not be disposed of within 21 years
after condemnation without first being offered to the
condemnee 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).
[J-125A-L-2016] - 35
We therefore find it necessary to remand this matter to the Commonwealth Court for
additional proceedings so that the parties may present arguments to the tribunal on this
question, and for it to address, in the first instance, what impact, if any, the resolution of
this question has on its prior conclusion that orphans’ court approval was required under
the DDPA for the sale of the Southern Parcels, even though they were acquired by the
Borough through condemnation.
B. Appeal of Objectors
We turn now to the Objectors’ appeal. Notably, our resolution of this appeal is
unaffected by our conclusion that the parties and the Commonwealth Court erroneously
applied Section 310(a) of the Eminent Domain Code in the proceedings below.
1. The DDPA and the Project 70 Act restrictions38
We begin with the question of whether the General Assembly’s release of Project
70 Act restrictions on the Northern Parcels precludes the application of the DDPA to the
Borough’s sale of these parcels. Objectors Kim Manufacturing and Stewart Hall (“Kim
and Stewart”) argue that the Commonwealth Court in Downingtown II misapplied our
Court’s decision in Erie Golf Course by deeming the DDPA’s application to be
dependent on the manner in which the property is acquired by the political subdivision,
thereby disregarding the public purpose for which the property is subsequently
dedicated, and the corresponding interest the public acquires because of this
dedication. Kim and Stewart contend that the Commonwealth Court improperly
considered the Northern Parcels to have been dedicated when they were acquired, in
part, with Project 70 Act funds, and Project 70 Act deed restrictions were placed on the
38
Kim Manufacturing and Stewart Hall L.L.P. have filed a joint brief, and the Friends of
Kardon Park have filed their own separate brief.
[J-125A-L-2016] - 36
properties. Kim and Stewart aver that the imposition of these deed restrictions was
distinct from the dedication of the property which involved a series of actions on the part
of the Borough over many years, and included the use of federal and state grant monies
to undertake various improvements to the park, as well as the Borough’s own
maintenance activities and enhancements of the park. In Kim and Stewart’s view, our
Court in Erie Golf Course held that the application of the DDPA to the disposition of
dedicated public property is dependent on acts of dedication and is not triggered merely
by the insertion of Project 70 Act-like restrictions in a deed. Consequently, according to
Objectors, the DDPA continues to apply to the Northern Parcels, as they were
dedicated to use as a public park, even though the General Assembly removed the
formal Project 70 Act restrictions from them.
Kim and Stewart assail what they consider the Commonwealth Court’s further
disregard of our Court’s holding in Erie Golf Course that purchased properties which are
committed to the public trust should not be excluded from the scope of application of the
DDPA by Section 3386, which provides that the DDPA does not limit or affect a political
subdivision’s control of public lands it acquires through purchase (or condemnation).
Kim and Stewart assert the Commonwealth Court in Downingtown I — a decision that
tribunal relied on in Downingtown II for its holding regarding the Northern Parcels —
improperly found that their acquisition with Project 70 Act funds, and the legislature’s
subsequent release of Northern Parcel 11-4-13 via the 1999 legislation, were the crucial
factors determining their proper disposition. Instead, and again, Kim and Stewart
proffer that our Court actually held in Erie Golf Course that it was the dedication of a
property, and not the conditions of its original purchase, which were determinative of the
DDPA’s applicability.
[J-125A-L-2016] - 37
Kim and Stewart further argue that the Commonwealth Court “erroneously pitted
these laws against each other,” by viewing the Project 70 Act as in conflict with the
DDPA and considering the provisions of the Project 70 Act to control over those of the
DDPA. Kim and Stewart Brief at 40-41. Instead, Kim and Stewart contend, the two acts
can be read consistently so as to give effect to both. Kim and Stewart argue that the
Project 70 Act and the DDPA “regulate different aspects of the same properties.” Id.
Specifically, in Kim and Stewart’s view, the Project 70 Act establishes a contractual
relationship between the Commonwealth and municipalities — with respect to
properties acquired through those funds — via the deed restrictions which protect the
Commonwealth’s financial investment, and which only it can take legal action to
enforce. The DDPA, on the other hand, establishes a process for disposing of
properties dedicated to public use, and the public has been granted standing to enforce
these public rights. Kim and Stewart, thus, characterize the Commonwealth’s interest
under the Project 70 Act as pertaining only to its financial interests and not to the public
trust interests protected by the DDPA.
From Kim and Stewart’s perspective, the Commonwealth Court’s decision
nullifies the DDPA and turns the Project 70 Act into a tool by which public parks may be
sold with no judicial oversight simply because Project 70 Act money was used in their
acquisition, even if the amount of such funds was small in comparison to the investment
of other public funds in the park by the Commonwealth and the municipality. Kim and
Stewart point out this could imperil the 500 municipal parks it estimates have been built
throughout the Commonwealth using Project 70 Act funds, and would exclude the
judiciary and the public from participation in the disposition process, as the DDPA
requires; hence, it “would signal a statewide ‘cash for parks’ opportunity” which would
[J-125A-L-2016] - 38
undermine the land preservation goals which the Project 70 Act sought to accomplish.
Kim and Stewart Brief at 45.
In their joint brief, Objectors Friends of Kardon Park and Ann Feldman
(“Friends”), stress that the Commonwealth Court decision is inconsistent given that the
court also found that they had standing to challenge the sale, inasmuch as the Project
70 Act does not grant standing to citizens to challenge removal of Project 70 Act
restrictions, whereas the DDPA does grant such standing. Thus, according to Friends,
the Commonwealth Court’s finding that they had standing was based on an implicit
conclusion that the DDPA was applicable.39
Friends highlight the fact that Project 70 Act money paid for only one half of the
total cost of the acquisition of the Northern Parcels, while the Borough paid for the
remaining half, and, subsequent to their acquisition of the parcels, the Borough
expended significant monies to improve them. Friends claim that allowing the sale of
the Northern Parcels solely on the basis of the legislative release would disregard these
years of public investment, and the dedication and public use of the park. Echoing Kim
and Stewart’s contention in this regard, Friends maintain that this would contravene the
public purpose for which the original Project 70 Act funds were allocated — the
acquisition and preservation of parklands for public use. Relatedly, Friends also aver
that the orphans’ court in its initial decision correctly treated the park property as a
whole — i.e., as a single integrated park — and contend that allowing some of the park
parcels to be sold in a piecemeal fashion would disrupt the park’s continued use as
such.
Friends suggest that deeming the Project 70 Act release to trump the
requirements of the DDPA could constitute a violation of the separation of powers
39
Kim and Stewart endorse this argument as well in their brief.
[J-125A-L-2016] - 39
doctrine under Article V, Sections 1, 2, and 10 of the Pennsylvania Constitution,
inasmuch as it could usurp the judiciary’s obligation to decide whether the sale of a
piece of publicly dedicated property violates the common law public trust doctrine as
embodied in the DDPA.40 Friends postulate that allowing the Commonwealth Court’s
decision to stand could result in a situation where the orphans’ court refuses to allow the
sale of a piece of publicly dedicated property, which is also subject to Project 70 Act
restrictions, but subsequent legislative release of the property from its Project 70 Act
restrictions would be given controlling effect over this judicial decision and permit the
sale. Friends suggest that this scenario is avoidable only by recognizing that the DDPA
and the Project 70 Act can be construed in pari materia, with effect given to all of the
provisions of both statutes.41
The Borough and Developers respond that the decision by the Borough to accept
Project 70 Act funds to purchase the Northern Parcels constituted a commitment by the
Borough to use that land only for the specified Project 70 Act purposes, in this case
recreational use as a public park. Thus, the Borough and Developers argue that the
dedication was effected at the time the Northern Parcels were acquired with Project 70
funds and Project 70 Act restrictions, not through any later actions by the Borough or
the public. Consequently, they reason, when the legislature authorized their release
from Project 70 Act restrictions through the 1999 and 2012 legislation, and removed the
restrictive covenant in the deeds, this voided their dedication and permitted their
conveyance by the Borough. The Borough and Developers reason that, because
40
Although Friends consider the DDPA to be the vehicle by which the public trust
doctrine embodied in the Pennsylvania Constitution’s Environmental Rights Amendment
— Article I, Section 27 — is enforced, because, as we explain infra, we decide this case
solely on statutory grounds, we need not express an opinion on this question.
41
The Pennsylvania Land Trust has filed an amicus brief in support of the Objectors’
suggested pari materia construction of the Project 70 Act with the DDPA.
[J-125A-L-2016] - 40
Section 3946.20(b) of Project 70 Act limits the Borough’s disposition of lands acquired
with Project 70 Act funds to the purposes specified in the Act, and requires the
imposition of the restrictive covenant in the deed of conveyance, removal of these
restrictions through subsequent legislation “necessarily authorizes the municipality to
‘dispose[] of or use[] the property’” for purposes other than those permitted by Project
70 Act. Borough and Developers Brief at 33 (citing 72 Pa.C.S. § 3946.20 9 (alterations
original)). In the Borough and Developers’ view, the legislation releasing the Northern
Parcels, which was enacted while the parcels were still being used as parkland, must be
viewed as specific legislation that governs the Borough’s right to dispose of the parcels
in the manner it sees fit, overriding any rights the public may have acquired under the
DDPA — a statute the Borough and Developer consider to apply only to “the general
category of dedicated property.” Id.
The Borough and Developers aver that there is nothing in the Project 70 Act
which requires that land acquired under that act be used solely for parkland purposes,
and that Section 3946.20(b) of the Act specifically contemplates “other uses” for such
property. Id. at 41. They contend that the 1999 and 2012 release legislation specifically
allowed other uses for the Northern Parcels, and expressly conditioned the release on
the Borough placing the same restrictions on other Borough property of identical size,
thereby serving to further a fundamental purpose of the Project 70 Act — the
conservation of land for recreational purposes. The Borough and Developers further
note that the 2012 legislation anticipates that the Borough will develop the park, as it
placed a number of restrictions on the sale of the property in connection with the
Borough’s planned development and the use of its proceeds. The Borough and
Developers assert that requiring the application of the DDPA after this express
legislative release will thwart this legislative permission. The Borough and Developers
[J-125A-L-2016] - 41
discount Objectors’ position that the Commonwealth Court’s holding will potentially
jeopardize hundreds of municipal parks, noting that such sales must also be approved
by local governments and the General Assembly.
As the issue of the interrelationship between the Project 70 Act and the DDPA
involves a question of statutory interpretation, our standard of review is de novo, and
our scope of review is plenary. City of Philadelphia v. City of Philadelphia Tax Review
Board ex rel. Keystone Health Plan East, Inc., 132 A.3d 946, 952 (Pa. 2015). In
interpreting the Project 70 Act and the DDPA, we are guided by the principles set forth
in the Statutory Construction Act (“SCA”), 1 Pa.C.S. §§ 1501 et seq. The paramount
objective of our interpretative task under the SCA is to “ascertain and effectuate the
intention of the General Assembly” in enacting the legislation under review, id.
§ 1921(a), and the primary indication of the legislature’s intent is the plain language of
the statute, Department of Environmental Protection v. Cumberland Coal, 102 A.3d
962, 975 (Pa. 2014).
The SCA directs that “[e]very statute shall be construed, if possible, to give effect
to all of its provisions” and that “[w]hen the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”
1 Pa.C.S. § 1921(a), (b). However, Section 1921(c) of the SCA provides that, if the
words of a statute “are not explicit,” then a reviewing court may consider other factors,
such as the statute's purpose, in order to ascertain legislative intent. Id. § 1921(c).
Additionally, the SCA also furnishes certain presumptions which a reviewing court is
entitled to utilize, two of which are relevant in this instance: (1) “the General Assembly
intends the entire statute to be effective and certain,” and (2) “the General Assembly
intends to favor the public interest as against any private interest.” Id. § 1922(2), (5).
[J-125A-L-2016] - 42
We begin our analysis by noting that there is no provision in the text of either the
Project 70 Act or the DDPA which indicates that the General Assembly intended either
law to have preeminence over the other in situations such as that presented by the case
at bar — i.e., where land which has been acquired by a municipality using Project 70
Act funds to pay one half of the cost of acquisition is then committed to public use by
that municipality, improved by the municipality using other public monies, and devoted
to continuous public use. Indeed, neither statute speaks directly to this situation.
Further, contrary to the findings of the Commonwealth Court and the assertions of the
Borough and Developers, the 1999 and 2012 legislative enactments do not, by their
explicit terms, confer a general authorization on the Borough to sell the Northern
Parcels to Developers. These enactments merely removed Project 70 Act restrictions
from these parcels, but the legislation contains no language exempting the Borough
from complying with the requirements of the DDPA.42 Consequently, these enactments
do not control the resolution of this issue.
Therefore, consistent with our overarching goal of construing statutes to fulfill the
intent of the General Assembly, we are obliged to construe the Project 70 Act and the
DDPA in harmony, if possible, so as to give effect to both.43 See, e.g., Commonwealth
42
See Act of June 25, 1999, P.L. 220, No. 29 §§ 1, 2 (specifying that the legislation
was enacted “[u]nder the requirements of [Section 3946.20]” of the Project 70 Act, and
that the land was “to be released from Project 70 restrictions.”); Act of Oct. 24, 2012,
P.L. 1293, No. 162, § 6(a) (providing that the legislation was enacted “[p]ursuant to the
requirements of [Section 3946.20]” and that “the General Assembly hereby approves
the release of Project 70 restrictions.”). As noted previously, see supra note 23 and
accompanying text, the General Assembly did not entirely remove Project 70 Act
restrictions from Northern Parcel UPI 40-1-23.1
43
Because our grant of allocatur did not encompass this issue, we need not consider
the Commonwealth Court’s finding in Downingtown II that the Objectors had standing to
pursue their claims under the DDPA to be dispositive of this question, as it is seemingly
in tension with that tribunal’s ultimate holding that the DDPA does not govern the
Borough’s right to sell the Northern Parcels.
[J-125A-L-2016] - 43
v. Hansley, 47 A.3d 1180, 1189 (Pa. 2012) (construing separate statutes, the
Recidivism Risk Reduction Act and the mandatory minimum sentencing provisions of
the Crimes Code, in accordance with their plain language and in a manner which gives
effect to both statutes); see generally Sutherland, Statutory Construction § 53:1 (7th ed.)
(observing that courts have a duty to construe statutes harmoniously where it is
reasonable to do so); 73 Am. Jur. 2d Statutes § 159 (“[W]hen two statutes are capable
of coexistence, it is the duty of the courts, absent a clearly expressed legislative
intention to the contrary, to regard each as effective.”). This is in accord with the
directives of the SCA, which provides that “[s]tatutes or parts of statutes are in pari
materia when they relate to the same persons or things or to the same class of persons
or things,” and which mandates that “[s]tatutes in pari materia shall be construed
together, if possible, as one statute.” 1 Pa.C.S. § 1932(a), (b); City of Philadelphia, 132
A.3d at 953; see also Kelly v. City of Philadelphia, 115 A.2d 238, 245 (Pa. 1955)
(“[S]tatutes in pari materia should be considered concurrently whenever possible and if
they can be made to stand together effect should be given to both as far as possible.”).
It is only when the provisions of two statutory enactments are irreconcilable that it is
necessary to resort to other statutory construction principles, such as the more specific
statute governs the general one. See 1 Pa.C.S. § 1933 (when general provision in
statute “conflict[s] with a special provision in the same or another statute, the two shall
be construed, if possible, so that effect may be given to both. If the conflict between the
two provisions is irreconcilable, the special provisions shall prevail”).
In the case at bar, the relevant provisions of Project 70 Act and the DDPA relate
to the same class of things — the disposition of governmentally owned lands used by
the public for recreation. Considering both the coextensive scope of the Project 70 Act
and the DDPA regarding the rights and duties of political subdivisions to dispose of
[J-125A-L-2016] - 44
lands utilized for those purposes, and the distinct, but equally important public interests
both of these enactments are intended to further, we conclude they must be read in pari
materia. Therefore, we must strive to give effect to the provisions of both statutes.
Under the Project 70 Act, whenever Project 70 Act monies are granted to a
municipality for the purposes of acquiring lands for “recreation, conservation and
historical purposes,” the deed conveying the property must contain an indenture, i.e., a
restrictive covenant specifying that the land is being acquired “for recreation,
conservation and historical purposes as said purposes are defined in [the Project 70
Act.” 72 P.S. § 3946.20(c). This restrictive covenant between the local government
body and the General Assembly is intended to protect the public fisc by insuring that
monies which were borrowed by the Commonwealth, as authorized by the Project 70
Act, and granted to municipalities will only be used in strict accord with the public
purposes designated by that act. That the paramount purpose of this provision is to
safeguard the Commonwealth’s funds is further evidenced by the significant penalties
the Project 70 Act imposes on a municipality which violates the act by using the
property in a manner inconsistent with the public purpose for which it was acquired,
such as conveying it to a private party. If such a violation occurs, the municipality is
obliged to return to the Commonwealth the full amount of the Project 70 Act monies
advanced to it, plus a statutory rate of interest of six percent from the date the monies
were granted. Id. § 3946.20(d).
By contrast with the Project 70 Act, as our Court recognized in Erie Golf Course,
the fundamental purpose of the DDPA is to delineate “the fiduciary nature of
municipalities' obligations relative to donated and dedicated properties and provided for
orderly relief therefrom in appropriate circumstances.” 992 A.2d at 86. We further
discerned that, in enacting the DDPA, the General Assembly incorporated “salient
[J-125A-L-2016] - 45
common-law principles” of the “public trust doctrine” as articulated in our caselaw prior
to its enactment. Id. Under that doctrine, whenever property was dedicated to public
use by a municipality, this action created a trust for the property with the public as the
beneficiary. It correspondingly required the municipality to act in the capacity of a
trustee by holding the property in favor of the community, and restricted the municipality
from diverting it from public use, or conveying it to a private party. Board of Trustees of
Philadelphia Museums, v. Trustees of University of Pennsylvania, 96 A. 123, 125 (Pa.
1915); In re Petition of Acchione, 227 A.2d 816, 820 (Pa. 1967) (once land is dedicated
to a public use by a municipality, the municipality becomes “trustee, subject to all the
duties and responsibilities imposed on any other trustee.”). As we recounted in
Philadelphia Museums, the public trust doctrine was developed in order to protect the
significant interests the public acquires in such property through their use of it and the
expenditures of tax monies for its care and improvement. 96 A. at 125.
Section 3382 of the DDPA codifies these legal precepts by providing:
All lands or buildings heretofore or hereafter donated to a
political subdivision for use as a public facility, or dedicated
to the public use or offered for dedication to such use, where
no formal record appears as to acceptance by the political
division, as a public facility and situate within the bounds of a
political 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.
Although the DDPA does not expressly define what constitutes a “dedication” of
property to public use — triggering the requirement of orphans’ court approval for its
disposition — we noted in Erie Golf Course that, under our prior decisions involving the
common law public trust doctrine, a property is “dedicated” to public use by a
[J-125A-L-2016] - 46
municipality whenever the municipality has both committed the property to public use
and the public has accepted it for such use. 992 A.2d at 85 n.14; Philadelphia
Museums, 96 A. at 125; see also Appeal of Leech, 89 A.2d 351, 353 (Pa. 1952) (“A
municipality’s dedication to a public use of land which it owns in fee must be accepted
by the public in order to become binding on the municipality.”). Consequently, the
DDPA is facially applicable to all property which meets these criteria. Erie Golf Course,
992 A.2d at 85 n.14.
Importantly, as related above, our Court held in Erie Golf Course that property
which was initially acquired via purchase by the local government was not excluded
from the ambit of the DDPA by Section 3386, which facially excludes purchased
property. In fact, we expressly recognized that “purchased property can be committed
to the public trust.” Id. at 88. Thus, it is the dedication of property to a public use as a
public facility, not the stated purpose for its acquisition by the municipality at the time
the acquisition takes place, which is the pivotal factor which brings the property within
the protective ambit of the DDPA. See 53 P.S. § 3381 (defining “lands” as “all real
estate, whether improved or unimproved,” and “public facility” as “without limitation any
park, theatre, open air theatre, square, museum, library, concert hall, recreation facility
or other public use”); id. § 3382 (making a municipality the trustee of lands or buildings
“dedicated to the public use . . . as a public facility” (emphasis added)). A dedication
occurs for purposes of the DDPA only when, after a property is acquired, a municipality
thereafter commits it to a public use as a public facility, and the public accepts that use.
For this reason, we reject the argument of the Borough and Developers that the
imposition of a Project 70 Act restrictive covenant, in and of itself, constitutes a
“dedication” of that property within the meaning of the DDPA.
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