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In re Wilkinsburg School Dist. for Court Approval of Sale of Vacant Land Pursuant to Section 7033 of Pennsylvania Public School Code

Commonwealth Court of Pennsylvania

October 8, 2014

Petition of Wilkinsburg School District for Court Approval of the Sale of Vacant Land Pursuant to Section 703(3) of the Pennsylvania Public School Code. Appeal of: Linda Kauffman, Robert Firth, Maryann Lambing, Elizabeth Ebel, Deborah Salzar, Sarah Bauer, Jim Kennedy, Charlotte Kennedy, Kaitlin Kennedy, Marty Cathcart, Therese Libert, Jessica Gogan, Julie Evans, Joe Davis, Dawn Lehman, Pat Watt, Susan Finger, Ann P. Anderson, Linda M. Mcsweeny, Mary Spezialetti, Autumn Kacian, Michael L. Goswell, Michael Lefebvre, Bob Bilas, Corey Makrush, Randall Connolly, Brenda Smith and the Nine Mile Run Watershed Association, Inc

Submitted April 24, 2014

Appealed from No. 13-GD-001154. Common Pleas Court of the County of Allegheny. Hertzberg, J.

Michael H. Wojcik, Pittsburgh, for appellants.

Matthew M. Hoffman, Pittsburgh, for appellee Wilkinsburg School District.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge (P.), HONORABLE PATRICIA A. McCULLOUGH, Judge.

OPINION

Page 575

BERNARD L. McGINLEY, Judge

The Nine Mile Run Watershed Association, Inc.,[1] its executive Director, Brenda Smith, and twenty-six residents and taxpayers (collectively " Objectors" ) who reside within the Borough of Wilkinsburg School District (School District) and the Borough of Wilkinsburg appeal from the order of the Court of Common Pleas of Allegheny County (trial court) which approved the School District's sale of vacant land, known as " Green Street Park" (Property) pursuant to Section 707(3) of the Public School Code of 1949 (Public School Code),[2] 24 P.S. § 7-707(3).

The Property is approximately one-half acre. It contains low concrete walls, grassy areas, and a deteriorated basketball court. There are no buildings on the land and it has never been used by the School District for any purpose. The nearest school building, Kelly Elementary School, is located two blocks from the Property and has its own playground and recreational area. The Property has never been used by Kelly Elementary School for programs or activities. The Property is not located in close proximity to any other School District land or buildings.

Since 1970, the Property was used as a park and was maintained by the Borough. The School District actually did not learn that it owned the Property until the summer of 2011, when the Borough informed the School District that the Borough would no longer maintain the Property as a park and that any future maintenance would be the School District's responsibility. Between October 2011 and February 2012, the School District and the Borough considered and discussed potential conveyance

Page 576

of the Property to the Borough. In February 2012, the Borough notified the School District that it was not interested in acquiring title to the Property.

Over the course of several months, the School District's Board of Directors (School Board) discussed the status of the Property at public meetings and reached a consensus that the School District did not use the Property and that the Property was unnecessary for school purposes.

In May 2012, the Borough informed the School District that Akator Construction, LLC was interested in purchasing the Property. At the School Board's meeting on December 18, 2012, a Motion was made, and seconded, to approve the " Agreement of Sale" between the School District and Akator Construction to sell the Property for $71,000.00.[3] The Motion was carried by unanimous vote.

In April of 2013, the School District filed a Petition for Court Approval of the Private Sale of Vacant Land pursuant to Section 707(3) of the Public School Code, 24 P.S. § 7-707(3). In Paragraph 3, the School District averred:

3. The Property is not and has not recently been used for school purposes and Wilkinsburg's Board of School Directors has determined that the Property is not necessary for school purposes (Emphasis added).

Second Amended Petition for Court Approval, April 17, 2013, at 1; Reproduced Record (R.R.) at 2.

In response, Objectors argued that the School District was required to pass a separate resolution or motion specifically finding that the Property was " unused and unnecessary" before determining whether to sell. Objectors also argued that the Property was " used" by adults and the children in the neighborhood and was " necessary" green space.

An evidentiary hearing on the Petition for Court Approval was held on September 4, 2013. The School District presented testimony of former School District Superintendent, Archie Perrin (Perrin), who testified that in 2011, when the School District learned that it owned the Property, there was " discussion among the Board of School Directors what to do with the Property." Hearing Transcript, September 4, 2013, at 15; R.R. at 90. That discussion occurred " over time at various meetings." Id. He explained that the School Board was made up of nine directors. The " Finance Committee," " Buildings and Grounds Committee" and " Property Committee" periodically met and discussed " what to do with the Green Street parcel." Id. at 16, 21; R.R. at 91, 96. The topic was also discussed by the full School Board at the planning session when the budget and financial reports were presented. Id. at 16, 22; R.R. at 91, 97. Perrin admitted on cross-examination that the full Board did not pass a separate motion or resolution determining the property was " unused and unnecessary." Id. at 22; R.R. at 97.

Former School District Business Manager, Bruce Dakan (Dakan) testified that discussions about whether there was any utility of the Property to the School District took place " over 12 to 18 months" at finance committee meetings and planning sessions with a representative of the Board and residents and the finance committee and the " whole Board discussed and deliberated" the Property. Id. at 43; R.R. at 118. Like Perrin, Dakan admitted that " there was no resolution or motion where the School Board declared the [P]roperty

Page 577

to be unused and unnecessary." Id. at 55; R.R. at 130.

The School Board President, Karen Payne (Payne), testified that the decision of the School Board that the Property was unused and unnecessary " happened over a series of meetings and discussions." There was no motion or resolution. Id. at 74; R.R. at 149. Payne also testified that the School Board was aware that the Borough of Wilkinsburg did a survey and determined that several parks were either not used or underutilized, and that the Property was one of those. Id. at 82; R.R. at 157. At a legislative meeting held after the Petition for Approval of the Sale of the Property was filed, an objector approached the School Board and asked for a meeting with the School Board to discuss the Property. The School Board granted the request. Id. at 75; R.R. at 150.

One objector, Linda Kauffman (Kauffman), resided across the street from the Property. She testified that she did have the opportunity, after the Petition for Approval of the Sale was advertised, to appear before the School Board to explain how the Property was used by her and other neighborhood residents. Id. at 95; R.R. at 170. Kauffman explained to the School Board that the Property was " not unused, it was not unnecessary, and that [she was] very upset about our park, our neighborhood park being disposed of in this way." Id.

Kauffman testified that the Property was used " by a number of children in the neighborhood" and that it was " a gathering point for the adults." Id. at 86; R.R. at 161. Kauffman testified that ten to twelve children use the Property as a park and that " three or four of them go to parochial school" and " three or four of them" who were previously home schooled " are going to a charter school." Id. at 91; R.R. at 166. She testified that if the Property was sold, the biggest loss would be " the open green space." Id. at 99; R.R. at 174. Kauffman admitted the Property was " not used by the School District for school programs." Id. at 101; R.R. at 176. However, she believed the School District had a " civic responsibility" to the " tax paying citizens of Wilkinsburg" to " bear the liability of the Property, in terms of maintaining it, insuring it, and being exposed to risks of claims if anybody gets hurt" as long as she and her neighbors used it. Id. at 102; R.R. at 177.

By order dated September 4, 2013, the trial court approved the Petition and authorized the School District to proceed with the private, negotiated sale of the Property to Akator Construction. The trial court found that the Public School Code did not require a motion or resolution specifically finding that real estate is " unused and unnecessary" before it may be sold. The trial court also rejected Objectors' contention that the Property was not " unused" because the children from the community use it. The trial court rejected Objectors' contention that public school-owned property would be " deemed to be 'used' so long as anyone at all is making any use whatsoever of the property." Trial Court Opinion, December 12, 2013, at 5. The trial court found that " since it is within the Public School Code, 'unused' must be considered in relation to public schools." Id.

On appeal,[4] Objectors assert that the trial court erred when it approved the sale of the Property because: (1) the School ...


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