Commonwealth Court Finds Proposed Sale of Unused Park Land Violates the DDPA

Legal Intelligencer

(by Max Junker and Anna Jewart)

Municipalities face many restrictions on how they may use real property, and Pennsylvania law places additional statutory restrictions on a municipality’s conveyance of property which has been used as a “public facility.”  The Donated or Dedicated Property Act, 53 P.S. §§3381-3386 (DDPA), states that “[a]ll lands or buildings… donated to a political subdivision for use as a public facility, or dedicated to the public use or offered for dedication to such use… shall be deemed to be held by such political subdivision, as trustee, for the benefit of the public with full legal title in the said trustee.”  “Lands” include all real estate, whether improved or unimproved, and a “public facility” includes, without limitation “any park, theater, open air theater, square, museum, library, concert hall, recreation facility or other public use.”  Any such lands or buildings are required to be used only for the purpose or purposes for which they were originally donated or dedicated, unless modified by court order.

Consequently, a municipality cannot simply sell or change the use of real property donated for or dedicated to use by the public.  This concept may seem familiar to the lay person and land use practitioner alike because, in essence, the DDPA codifies the common law of the “public trust doctrine” which requires that public property dedicated to public use be held by the municipality, as a trustee, for the benefit of the community.

However, the DDPA allows the municipality to dispose of public trust property in certain specific circumstances if approved by the court.  Specifically, under Section 4 of the DDPA, a municipality may apply to the orphan’s court for certain enumerated relief if, in the opinion of the municipality, the continuation of the original use of the property held in trust as a public facility is no longer practicable or possible and has ceased to serve the public interest.  Under the DDPA, the orphan’s court may permit the trustee to:

  1. substitute other lands or property of at least equal size and value in exchange for the trust property in order to carry out the trust purposes;
  2. sell the property and apply the proceeds to carry out the trust purposes, but only if other property is not available;
  3. apply the property or proceeds therefrom to a different public purpose, but only if the original trust purpose is no longer practicable or possible or in the public interest; or
  4. relinquish the land and buildings if there has been no formal acceptance, and only if the court is satisfied that no acceptance by implication arising out of public use occurred.

Recently, in the case of In re Township of Jackson, 280 A.3d 1074 (Pa. Cmwlth, 2022), the Commonwealth Court revisited several seminal cases interpreting the DDPA to consider whether the orphan’s court had properly denied the petition of Jackson Township, Lebanon County, to sell a parcel donated to the Township for use as a public park.  In part, the Court considered whether the orphan’s court or the municipality had the discretion to determine whether the trust purpose was no longer practicable, possible, or in the public interest under Section 4 of the DDPA.

Like many municipalities in Pennsylvania, Jackson Township’s Subdivision and Land Development Ordinance (SALDO) requires a developer to either dedicate land to the Township for public recreational use or pay fees in lieu thereof.  When the developer of a residential plan sought Township approval, it opted to donate land to the Township, and chose a 5.7 acre parcel identified as Lot 107 (“Park Lot”).  In 2005, the developer conveyed the Park Lot by deed to the Township to be used “for ever [sic] as a public park or [for] other public purpose.”  At the time of donation, however, there existed conditions on the Park Lot which rendered it less than ideal for use as a public park including a drainage easement, a private road easement, steep slopes, limited public access, and heavily wooded areas.  Although the Township Recreation Board recommended against accepting the Park Lot, the Board of Supervisors accepted the donation as a public park.

Later, the Township studied how to develop the Park Lot  as a trail system, basketball court, or nature preserve.  Although the Township budgeted for improvements, none ever occurred.  Eventually, at the recommendation of the Recreation Board, the Township Supervisors voted to pursue a sale of the Park Lot.  The Township filed a petition for leave of court to sell the Park Lot for the stated reason that “[d]ue to the topography of the land as well as the cost to maintain said lot,” it was not practicable to develop it as a public park and that the continued use does not “serve the general public interest.”

In the orphan’s court, the Township Engineer testified that although the Park Lot could not accommodate sports fields or recreational buildings, it could be used as a walking trail and a flat portion could be used as a playground or basketball court at a cost of $80,000.  Neighbors testified against the sale of the parcel, stating the lot connected two ball-fields and that a trail through the Park Lot would allow children to walk to the fields without crossing the roads.  Residents showed that the Township had advertised and developed plans for the Park Lot as a neighborhood park with a walking path and basketball court.  In addition, the developer had charged a premium for lots located adjacent to the Park Lot, touting it as a public park.  The Township argued that a walking trail could affect pedestrian safety, that the excavation and grading required would cost more than it would on a flat lot, and that it was in the best economic interest of the Township to sell the Park Lot.

The orphan’s court denied the Township’s petition.  Although it recognized the Park Lot was not ideal for recreational development, it found that the Township failed to establish that it was entitled to relief under Section 4 of the DDPA.  The orphan’s court noted that the Park Lot had been dedicated for recreation purposes and the Township had accepted that use for the public.  It found that the vacant and unimproved nature of the Park Lot did not change the nature of the dedication or its use for recreation purposes, defining recreation as “refreshment of strength and spirits after work,” or a “means of refreshment or diversion.”

On appeal, the Township argued the orphan’s court was bound by the Township’s determination that the original use of the property was no longer practicable or possible and no longer served the public interest.  Relying on In re Erie Golf Course, 992 A.2d 75 (Pa. 2010) and In re Borough of Downington, 161 A.3d 844 (Pa. 2017), the Court found that the orphan’s court has final discretion about how the property should be used, and that the Township, as trustee, had a fiduciary obligation to maintain donated and dedicated land for public use.  As stated by the Court: “Section 4 of the [DDPA] does not vest controlling discretion in the political subdivision; rather, it merely authorizes the municipality, as trustee, to file an application for relief in the trial court.”  The Court noted that the Supreme Court in Erie Golf Course made it clear that “the sale of the property was not discretionary with the [municipality] in the first instance in light of its fiduciary obligations,” and that “essential discretion lay in the [trial] court, to which appellate court deference is due.”  Therefore, Section 4 of the DDPA does not vest controlling discretion in the municipality, but rather merely authorizes the municipality to file a petition for relief.

Ultimately, the Court found no error in the orphan court’s judgment that the Township had not established that recreational use of the Park Lot was no longer practicable, either physically or financially.  The Court noted the Park Lot could be left unimproved or the Township could develop a walking trail and basketball court at a cost of $80,000 for which the Township had sufficient funds.  In addition, the Court rejected the Township’s argument that the orphan’s court had abused its discretion because the proceeds from the Park Lot could be better used by improving another recreational facility which would benefit a wider group of residents.  The Court reasoned that the DDPA focuses on whether the original use has ceased to serve the public interest, not whether another use would better serve the same.

Max Junker is a shareholder in the public sector, energy and natural resources and employment and labor groups of Babst Calland.  Anna S. Jewart is an associate in Babst Calland’s Public Sector Services group and focuses her practice on zoning, subdivision, land development, and general municipal matters.

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Reprinted with permission from the October 20, 2022 edition of The Legal Intelligencer© 2022 ALM Media Properties, LLC. All rights reserved.