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In re Petition of Borough of Downingtown

Supreme Court of Pennsylvania

June 20, 2017

IN RE: PETITION OF THE BOROUGH OF DOWNINGTOWN APPEAL OF: FRIENDS OF KARDON PARK AND ANN FELDMAN IN RE: PETITION OF THE BOROUGH OF DOWNINGTOWN APPEAL OF: FRIENDS OF KARDON PARK AND ANN FELDMAN IN RE: PETITION OF THE BOROUGH OF DOWNINGTOWN APPEAL OF: FRIENDS OF KARDON PARK AND ANN FELDMAN IN RE: PETITION OF THE BOROUGH OF DOWNINGTOWN APPEAL OF: FRIENDS OF KARDON PARK AND ANN FELDMAN IN RE: PETITION OF THE BOROUGH OF DOWNINGTOWN APPEAL OF: BOROUGH OF DOWNINGTOWN, COUNCIL OF THE BOROUGH OF DOWNINGTOWN, PROGRESSIVE HOUSING VENTURES, LLC AND J. LOEW & ASSOCIATES, INC. IN RE: PETITION OF THE BOROUGH OF DOWNINGTOWN APPEAL OF: BOROUGH OF DOWNINGTOWN, COUNCIL OF THE BOROUGH OF DOWNINGTOWN, PROGRESSIVE HOUSING VENTURES, LLC AND J. LOEW & ASSOCIATES, INC. IN RE: PETITION OF THE BOROUGH OF DOWNINGTOWN APPEAL OF: BOROUGH OF DOWNINGTOWN, COUNCIL OF THE BOROUGH OF DOWNINGTOWN, PROGRESSIVE HOUSING VENTURES, LLC AND J. LOEW & ASSOCIATES, INC. IN RE: PETITION OF THE BOROUGH OF DOWNINGTOWN APPEAL OF: BOROUGH OF DOWNINGTOWN, COUNCIL OF THE BOROUGH OF DOWNINGTOWN, PROGRESSIVE HOUSING VENTURES, LLC AND J. LOEW & ASSOCIATES, INC. IN RE: PETITION OF THE BOROUGH OF DOWNINGTOWN APPEAL OF: KIM MANUFACTURING COMPANY AND STEWART HALL, L.P. IN RE: PETITION OF THE BOROUGH OF DOWNINGTOWN APPEAL OF: KIM MANUFACTURING COMPANY AND STEWART HALL, L.P. IN RE: PETITION OF THE BOROUGH OF DOWNINGTOWN APPEAL OF: KIM MANUFACTURING COMPANY AND STEWART HALL, L.P. IN RE: PETITION OF THE BOROUGH OF DOWNINGTOWN APPEAL OF: KIM MANUFACTURING COMPANY AND STEWART HALL, L.P.

         Appeal from the Order of the Commonwealth Court at No. 2342 CD 2013 dated April 29, 2015 which 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.

         Appeal from the Order of the Commonwealth Court at No. 26 CD 2014 dated April 29, 2015 which 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.

         Appeal from the Order of the Commonwealth Court at No. 75 CD 2014 dated April 29, 2015 which 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.

         Appeal from the Order of the Commonwealth Court at No. 76 CD 2014 dated April 29, 2015 which 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.

          SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

          OPINION

          TODD JUSTICE.

         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 Code[3] - allow Appellant Downingtown Borough ("Borough")[4] to sell to private housing developers - Appellants Progressive Housing Ventures, LLC and J. Loew and

          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 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 11-4-23[7] (the "Meisel Parcel"), which is situated 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 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 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 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 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 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 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

          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.

         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 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 lands[16] 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 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 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.

         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]

         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 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 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]

         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 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 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]

         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 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 ...


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