No. 121 E.D. Appeal Docket 1983/No. 122 E.D. Appeal Docket 1983 Appeal from the Order of the Commonwealth Court of Pennsylvania, Dated April 18, 1983, No. 1136 C.D. 1981, Reversing and Vacating the Final Decree of the Court of Common Pleas of Bucks County, Dated April 30, 1981, No. 80-4587-12-1, Petition for Allowance of Appeal granted by Order entered November 11, 1983, 379 E.D. Allocatur Docket 1983, Pa. Commw.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, J., files a concurring opinion. Papadakos, J., files a concurring and dissenting opinion in which McDermott, J., joins.
In this consolidated appeal of first impression, we are called upon to interpret the Act of 1966, Jan. 13, P.L. (1965) 1292, § 1, et seq., as amended, 16 P.S. § 11941, et seq. commonly referred to as Act. 515.*fn1 The relevant provisions of the act in question provide:
Covenant for farm, forest, water supply or open space uses
All counties of the first, second, second A, third or fourth class are hereby authorized to enter into covenants with owners of land designated as farm, forest, water supply, or open space land on an adopted municipal, county or regional plan for the purpose of preserving the land as open space. Such covenants and extensions thereof shall take effect upon recording in the office of recorder of deeds. The land owner may voluntarily covenant for himself and his successors and assigns in right, title and interest that the land will remain in open space use as designated on the plan for a period of ten years commencing with the date of the covenant. The county shall covenant that the real property tax assessment, for a period of ten years commencing with the date of the covenant, will reflect the fair market value of the land as restricted by the covenant. The board to which assessment appeals are taken shall take into consideration the covenant's restriction upon the land in fixing the assessment.
1966, Jan. 13, P.L. (1965) 1292, § 3, as amended 1967, Dec. 21, P.L. 882, No. 395, § 1; 1972, Oct. 26, P.L. 1030, No. 254, § 2. 16 P.S. § 11943.
Any tract or tracts of land in common ownership of at least twenty acres in area, used for the raising of livestock or the growing of crops. (emphasis supplied)
In the Deigendesch case, the subject land was to be preserved in "open space land" and "farm" uses. Act 515 defines open space land as:
Any land, including farm, forest and water supply land, in common ownership, of at least ten acres in area, in which site coverage by structures, roads and paved areas does not exceed three percent. Open space land includes land the restriction on the use of which could (i) conserve natural or scenic resources, including but not limited to soils, beaches, streams, wetlands, or tidal marshes; (ii) enhance the value to the public of abutting or neighboring parks, forests, wildlife preserves, nature reservations, or other public open spaces; (iii) augment public recreation opportunities; (iv) preserve sites of historic, geologic, or botanic interest; (v) promote orderly urban or suburban development; or (vi) otherwise preserves open space without structures, roads and paved areas exceeding three percent of site coverage. (emphasis supplied)
Feeneys Nursery, Inc., Appellee
In August, 1972, pursuant to Act 515, Robert Clayton and Marion Clayton, predecessors in title to appellee, Feeneys Nursery, covenanted with Bucks County to maintain the 76.39 acre subject tract as farmland. As a result of the covenant, the property owners benefited by the preferential tax assessment provided for by the Act. In November, 1979, the appellee sold and conveyed a 5.4 acre parcel carved out of the original 76.39 acre tract. At or about the time of the sale, Bucks County Board of Assessment Appeals, appellant, determined that the conveyance breached the Act 515 covenant and assessed rollback taxes*fn3 back to
when the covenants were originally executed.*fn4 The rollback tax assessment was paid out of a sum escrowed for that purpose at the closing. The appellee then filed an appeal to recover the back taxes paid. The trial court found that a change in ownership brought about by a conveyance of a portion of the tract does not breach the covenant, so long as the land is maintained in the physical use for which it was covenanted.*fn5 The Commonwealth Court agreed with the trial court's conclusion and affirmed.*fn6
The appellant Board argues that under Act 515 there are two essential requirements to qualify for preferential tax treatment: (1) the land must be in common ownership; and (2) the land must meet the requisite minimum acreage provided by the statute. Appellant contends that when the land in question was subdivided and a portion not meeting the minimum acreage requirements was conveyed, both of the statutory essentials were violated.
The appellee, on the other hand, argues that since the physical use of the land did not change at the time of or after the sale, no breach occurred and the tract still qualifies for preferential tax treatment.
"The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions."
Statutory Construction Act of 1972, Dec. 6, No. 290, § 3, 1 Pa.C.S.A. § 1921.
"[T]he General Assembly intends to favor the public interest as against ...