In this opinion by the Supreme Court of Pennsylvania, the Court was asked to determine whether three statutory provisions — the “Donated or Dedicated Property Act” (“DDPA”), the “Project 70 Land Acquisition and Borrowing Act” (“Project 70 Act”), and the Eminent Domain Code — permitted Downingtown Borough (the “Borough”) to sell Borough owned and maintained parkland to private Developers, and to grant Developers easements over portions retained by the Borough. In reversing and remanding the Commonwealth Court’s decision, the Court held the Eminent Domain Code was inapplicable to the Borough’s right to sell properties acquired by condemnation, and court approval was required to sell properties acquired with Project 70 Act funds and to grant easements across park land pursuant to DDPA.
Downingtown Borough acquired 5 adjoining parcels of land in the 1960s and ‘70s to create Kardon Park. Some of this land had previously been used for industrial activities and quarries, which had been filled with industrial and municipal waste and covered. The Borough acquired these parcels by direct purchase (the “Meisel Parcels”), by purchase using Project 70 Act funds from the General Assembly (the “Northern Parcels”), and by eminent domain (the “Southern Parcels”). After maintaining the park for several decades, the Borough began to consider selling portions for commercial development. In 1999 the Borough obtained a release from the General Assembly from the Project 70 Act restrictions on the Northern Parcels, and in July 2006 entered into an agreement with Developers to purchase a portion of the park to construct a mixed use development. The Borough retained a portion of the park, but granted Developers stormwater, utility, and maintenance easements over those portions.
In early 2009, a group of Borough residents (“Objectors”) commenced an action in the Chester County Court of Common Pleas seeking to prevent the sale, and the Borough filed a petition with the Chester County Orphans’ Court seeking approval for the sale. The appeals were consolidated before the Orphans’ Court. The Orphans’ Court denied the Borough’s petition, based entirely on DDPA. DDPA dictated that lands dedicated to public use be held in public trust, and only allowed modification by court order upon a showing that the original use was no longer practicable or possible. The Orphans’ Court denied the petition after determining the park as a whole was dedicated to public use, and that the use of the park for public purposes was not impossible or impracticable. Specifically, the court rejected the Borough’s argument that the areas with contaminated soil did not render the park as a whole unsuitable for public use.
Developers appealed to the Commonwealth Court, which reversed and remanded to the Orphans’ Court. Specifically, it found the Orphans’ Court had erred by not considering the Project 70 Act and Eminent Domain Code along with DDPA when determining whether the sale was permitted. On remand the Orphans’ Court again denied the petition as to the Southern Parcels, finding DDPA applied to property acquired by condemnation; but found the Borough was authorized to dispose of the Norther Parcels because the General Assembly had released those parcels from the Project 70 Act requirements. Objectors and Developers filed cross appeals to the Commonwealth Court. The Commonwealth Court affirmed, and all parties petitioned for allowance of appeal by the Pennsylvania Supreme Court.
The Supreme Court affirmed in part and reversed in part. It held the Eminent Domain Code was not applicable, and that the Borough was required to obtain court approval under DDPA before selling parcels purchased with Project 70 Act funds. Lastly, it concluded that court approval was required for the Borough to grant easements to Developers over the park properties.
Click here to read: In Re Downingtown Borough, 12-23 MAP 2016 (Pa. Jun. 20, 2017).