White v. Township of Upper St. Clair

• Decision Date: 30 April 2002
• Citation: 799 A.2d 188
• Parties: 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.
• Court: Pennsylvania Commonwealth Court

799 A.2d 188

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.

Commonwealth Court of Pennsylvania.

Argued February 11, 2002.

Decided April 30, 2002.

Reargument Denied June 25, 2002.

Eugene J. Reinbold, Pittsburgh, for appellants.

Robert J. Wratcher, Pittsburgh, for appellees.

BEFORE: COLINS, President Judge, LEAVITT, Judge, and KELLEY, Senior Judge.

OPINION BY Judge LEAVITT.

Thomas S. White, Mark G. Trombetta, M.D., Robert E. Faust, Leonard C. Highley, and H. Scott Hawkins are residents (Residents) of Upper St. Clair Township (Township). Residents brought suit in the Court of Common Pleas of Allegheny County (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 (County) 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. The Trial Court dismissed the complaint by a series of orders sustaining preliminary objections and granting summary judgment; these orders have been appealed to this Court.¹ We reverse in part and affirm in part.

HISTORY OF THE CASE

Since its acquisition by the Township in 1985, Boyce Park has remained an undeveloped parcel of land. The park consists of approximately 200 acres of rolling hills, meadows, forest, and wetlands traversed by hiking trails; it serves as a preserve for wild flora and fauna. The Township's 1995 Comprehensive Plan designated Boyce Park for public recreation, which it described as "natural open space," and recited the Township's commitment to preserve its open space.

In 1995, a representative of Robert Crown t/d/b/a Crown Communications and Barbara Crown (collectively 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.² 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 Board of Commissioners of the Township 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.³

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 Crown⁴ 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 to the tower, 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 increase if the Lease is extended into additional terms. Crown has stipulated that at the time of the execution of the Lease, it was aware of the deed restrictions relating to the uses for Boyce Park. (R.R. 433a).

Excavation and clearing of the property began in July of 1996, and on September 27, 1996, the tower was delivered to the site. By October 7, 1996, the tower reached a height of 200 feet, at which point regulations of the Federal Aviation Administration required that it be lighted. The tower then became noticeable to the Residents. By the end of October, the structure was complete. On November 8 and 10, 1996, two of the Residents, White and Trombetta, filed appeals with the Zoning Hearing Board claiming that the tower conflicted with the Township's R L1 Low Density Zoning District. After a hearing, the Zoning Hearing Board held that the protests were timely filed; that the tower violated the Zoning Code; that Ordinances 1710 and 1712 were improperly enacted; but that Crown had vested rights to continue its use of the property.⁵

On November 20, 1996, the Residents filed a five count complaint (Complaint) with the Trial Court seeking declaratory and injunctive relief to have the Lease declared null and void and to have the tower removed. Residents also sought alternative relief in the form of a writ of mandamus. The Township and Crown filed preliminary objections to the Complaint, asserting, inter alia, that the Residents lacked standing, that the Residents failed to state a cause of action (on grounds of laches, estoppel, waiver and inapplicability of a statute) and that the Court lacked subject matter jurisdiction.

On February 7, 1997, the Trial Court entered an order sustaining some of the preliminary objections and overruling others. From that point, the procedural history becomes a point-counterpoint series of filings that include: answers with new matter, an amended complaint, new preliminary objections, cross-motions for summary judgments, a motion for leave to amend the complaint and various motions for reconsideration. In the end, all five counts of the Complaint were dismissed. Four of the Trial Court's orders⁶ are before us: the order of February 7, 1997, the order of June 24, 1998, the order of December 16, 1998, and the order of June 28, 2000. On June 11, 2001, the Trial Court entered a Statement in Lieu of Opinion.

The issues raised by Residents in their appeals to this Court are as follows: 1) whether their status as residents and taxpayers of the Township gives them standing to challenge the use of Boyce Park for purposes other than those specified in the deed; 2) whether Residents may compel the Township to make application under the Donated or Dedicated Property Act or enforce the Township's duty under the act; 3) whether the Township and Crown were required to file a subdivision and development plan pursuant to the Township Subdivision and Development Ordinance; and 4) whether the Township was required under its Home Rule Charter to use competitive bidding procedures in its acquisition of emergency communications service. Crown has participated in this appeal, but the Township has not.

STANDING

In its order of February 7, 1997, the Trial Court held that the Residents had standing to challenge the alleged violations of the deed restrictions set forth⁷ in Count I of their Complaint. Subsequently, in its order of June 28, 2000, the Trial Court reversed itself, holding that the deed created a charitable trust that could be enforced by the Attorney General or by a person with a special relationship to the trust but not by the Residents, whose interests were found not to be sufficiently "special." In their appeal, Residents contend that their interests as residents and taxpayers are sufficient to confer standing but, in any case, standing can certainly be found in their allegation of reduced property values caused by the nearby, unsightly tower,⁸ which allegation the Trial Court refused to allow by amendment to the Complaint in its June 28, 2000 order. Residents also charge that the Trial Court violated the "law of the case" doctrine by reversing itself on the issue of standing, when no new facts had emerged to justify this reversal.

To do its standing analysis,⁹ the Trial Court relied upon case law precedent where members of the public have sought to amend, or to preserve from change, the terms of a charitable trust established by private persons. These include Wiegand v. Barnes Foundation, 374 Pa. 149, 97 A.2d 81 (1953) (wherein an editor of the Philadelphia Inquirer sought to increase the hours of public access to the Barnes Foundation's art gallery) and Valley Forge Historical Society v. Washington Memorial Chapel, 493 Pa. 491, 426 A.2d 1123 (1981) (wherein the society sought to continue its right to occupy the chapel). Each case analyzed the question of standing and held firm to the principle that a member of the general public lacks standing to enforce a duty owed by a charitable organization. The reason is that if one individual may interpose in a private charity's operation, another may to the contrary, and there would be no end to litigation and strife.¹⁰ At issue here, however, is a public park. The standing analysis is different in cases where citizens seek to protect a park, a town square or other land dedicated to a particular public purpose from degradation or intrusion by an inconsistent public or private use. It is that body of case law that provides the appropriate authority in this case.

Real property may be dedicated¹¹ to public use in a variety of ways. Dedication may be express or it may be implied from the acts of the parties, and it need not take a particular form. 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. Dedication, like a contract, requires both offer and acceptance, and once there is acceptance, in whatever form it takes, dedication is irrevocable. Borough of Ridgway v. Grant, 56...