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White v. Township of Upper St. Clair

March 3, 2009

THOMAS S. WHITE, MARK G. TROMBETTA, M.D., ROBERT E. FAUST, LEONARD C. HIGHLEY, AND H. SCOTT HAWKINS, APPELLANTS
v.
TOWNSHIP OF UPPER ST. CLAIR, ROBERT CROWN, T/D/B/A CROWN COMMUNICATIONS, AND BARBARA CROWN, HIS WIFE



The opinion of the court was delivered by: Senior Judge Kelley

Argued: January 27, 2009

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

In these consolidated appeals, Leonard C. Highley*fn1 appeals from: (1) the February 29, 2008 order of the Court of Common Pleas of Allegheny County (trial court) denying Highley's motion for post trial relief from the trial court's December 10, 2007 order; and (2) the trial court's June 23, 2008 order entering judgment for Upper Saint Clair (Township), Robert H. Crown t/d/b/a Crown Communications and Barbara Crown (collectively referred to as "Crown") and against Highley. The trial court's December 10, 2007 order dismissed Highley's complaint against Crown and the Township with prejudice on the basis that Highley's claims were barred by laches because: (1) Highley unreasonably delayed bringing this action; and (2) the Township and Crown had been prejudiced by the delay.

Highley raises the following issues in this appeal:

1. Whether the trial court abused its discretion, ignored the evidence, and committed an error of law when it:

a. determined that a mere delay of 41 days could give rise to the defense of laches;

b. found that Highley did not utilize due diligence in discovering the illegal activities of the Township and Crown;

c. failed to find that the conduct of Crown and the Township in negotiating a lease, approving a lease, and permitting the 350 foot tower demonstrated unclean hands and that Crown and the Township were barred from asserting laches as a defense; and

d. found that Crown and the Township were prejudiced by Highley's delay of 41 days in filing his lawsuit.

2. Whether this Court should retain jurisdiction over the final disposition of this case.

The facts of this matter are set forth in detail in this Court's opinion in White, et. al v. Township of Upper St. Clair, Robert Crown, t/d/b/a Crown Communications, and Barbara Crown, his wife, 799 A.2d 188 (Pa. Cmwlth. 2002).*fn2 The following is a recitation of the pertinent facts from that opinion.

The original plaintiffs in this action are residents of the Township. They brought suit in the trial court to challenge the construction of a 350-foot high communications tower in Boyce Park, a public park located in the Township. Boyce Park was conveyed to the Township by the County of Allegheny under a deed that limited the use of the property to recreation, conservation and historic purposes, and the residents asserted that a communications tower was inconsistent with these deed restrictions.

In 1995, a representative of Crown approached the Township about Crown's interest in constructing a communications tower in the Township. By August of 1995, Crown had fixed upon a location in Boyce Park for the project, which was next to an existing tower of 180 feet built in 1992 that provided the Township with certain emergency communications support. Coincidentally, the Township decided that its existing emergency communications system was inadequate. Crown proposed to replace it in exchange for an easement in Boyce Park.

On April 1, 1996, the Township Commissioners enacted Ordinance 1710 authorizing Township officials to complete negotiations with Crown for the construction of a state-of-the-art communications tower and to enter into a lease of Township realty for that purpose. Ordinance 1710 did not identify the Township realty under consideration for the lease. On May 6, 1996, the Board of Commissioners enacted Ordinance 1712 consisting of numerous amendments to the Zoning Code, one of which exempted the Township and its lessees from all provisions of the Zoning Code.*fn3

On June 28, 1996, the Township entered into a lease agreement (Lease) with Crown for an initial term of 25 years with an option to renew for three successive terms. The Lease was for .428 acres of the approximately 200 acres that make up Boyce Park, and it obligated Crown to install, maintain and operate a 350-foot high communications tower and to provide the Township a public communications system for 911, police, fire and emergency medical services. In addition, Crown was required to erect three adjoining buildings for equipment and to encircle the parcel with an eight-foot high cyclone fence topped with barbed wire. Finally, Crown was to pay the Township annual rent of $2500 for its occupancy of the .428 acres of Boyce Park with a possibility of a future rent ...


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