Volume 58, No. 38

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

NOTICE OF PRIVATE SALE

ASSUMED NAME NOTICE

NOTICE OF ORDINANCE

CHANGE OF NAME

 

TABLE OF CONTENTS

In Re: Petition of the Township of Jackson to Sell Lot 107, Wheatland Manor

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF ALBERT M. WEAVER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Sharon L. Weaver, Executrix

55 Pineapple Road

Myerstown, PA 17067

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF ELLEN G. GOODYEAR, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

Duane M. Goodyear, Executor

312 Hill Street

Bainbridge, PA 17502

 

Audrey E. Stoudt, Executor

700 South College Street

Myerstown, PA 17067

 

Timothy T. Engler, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF HARVEY L. INGRAM, late of Millcreek Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Anita K. Weidman, Executrix

129 Richland Road

Myerstown, PA 17067

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF GUY R. FESSLER, JR., late of Union Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

Vickie Lee Hocker, Administratrix

 

Kevin M. Dugan, Esquire

Feather and Feather, P.C.

22 West Main Street

Annville, PA 17003

 

ESTATE OF VIOLA H. KLINE, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Michael Shay Kline, Executor

605 E. Mifflin Street

Lebanon, PA 17046

 

Edward Coyle, Esquire

Buzgon Davis Law Offices

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF HOWARD G. HECKMAN A/K/A HOWARD GEORGE HECKMAN, late of Millcreek Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Elaine E. Heckman, Executrix

216 S. Sheridan Rd.

Newmanstown, PA 17073

 

Timothy T. Engler, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF CYNTHIA LEE FREY A/K/A CYNTHIA L. FREY, late of Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

Adrienne P. Zuercher, Administrator

 

Lindsay M. Schoeneberger, Esquire

Russell, Krafft & Gruber, LLP

930 Red Rose Court, Suite 300

Lancaster, PA 17601

 

SECOND PUBLICATION

 

ESTATE OF MARY JANE KLICK, late of Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Michael W. Klick, Executor

5 Georgie Lane

Richland, PA 17087

 

Jason J. Schibinger, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF GENE B. MATTERNESS, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Amy B. Anderson, Executrix

27 Bethpage Drive

Mechanicsburg, PA 17050

 

Paul W. Kilgore, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA 17042

 

ESTATE OF FRANKLIN A. MARTRANO A/K/A FRANKLIN ANTHONY MARTRANO, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Dreama Miller, Executor

420 W. Cedar St.

Palmyra, PA 17078

 

Scott L Grenoble, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF EULALA T. STINGER, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Leonard Crowther, Executor

 

1. Charles Benner, Esquire

200 East Main Street

Leola, PA 17540

 

ESTATE OF LOUISE M. WILLEMAN, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

Michael H. Willeman, Administrator

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF NANCY G. POUST, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Judith P. Heckard, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF ERNESTINE E. HOUSER, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

Elaine E. Gibble, Executrix

Edwin E. Houser, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF RICHARD R. KRUMBINE, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Polly A. Krumbine, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF HELENE M. EISENHAUER, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Jane L. Kaylor, Executrix

 

Kevin D. Dolan, Esquire

Nikolaus & Hohenadel, LLP

222 S. Market Street, Suite 201

Elizabethtown, PA 17022

 

THIRD PUBLICATION

 

ESTATE OF DOLORES V. UHLER, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Debra A. Binkley, Executrix

 

John M. Zimmerman, Esquire

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

 

ESTATE OF JOHN RUTT A/K/A JOHN G. RUTT, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

Stephen J. Mascherino, Administrator

 

Richard C. Seneca, Esquire

Seneca Law

P.O. Box 333

Lewisberry, PA  17339-0333

 

ESTATE OF LARRY H. ARNOLD, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Bonnie L. Wallish, Executor

 

George E. Christianson, Esquire

Christianson Meyer

411 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF ROBERTA L. GRISWOLD, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased 1/23/21. Letters Testamentary have been granted to the undersigned Executor.

Kirk A. Griswold, Executor

210 Chapel Road

Newmanstown, PA 17073

 

Gerald W. Brann

Brann, Williams, Caldwell & Blaney

1090 West Main Street

Troy, PA 16947

 

ESTATE OF MARY C. MEININGER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Scott N. Ream, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF PETER F. HEWITT, late of Mount Gretna Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Gillian Marie Hewitt, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF ANNA M. WAGNER, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Mervin L. Wagner, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF ELIZABETH HEILIGMAN, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Fulton Financial Advisors, N.A., Executor

 

George E. Christianson, Esquire

Christianson Meyer

411 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF CLARENCE G. BAILEY, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Fulton Financial Advisors, N.A., Executor

 

George E. Christianson, Esquire

Christianson Meyer

411 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF VERNON D. HERR, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

Daryl T. Herr, Executor

1 Lost Acre Lane

Newmanstown, PA 17073

 

Nevin L. Herr, Executor

433 Sheephill Road

Newmanstown, PA 17073

 

Vernon L. Herr, Executor

2119 Walnut Street

Lebanon, PA 17042

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF JUDITH A. KENDIG A/K/A JUDITH ANN KENDIG, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Fulton Bank, N.A., Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF MILDRED M. RUHL, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

David M. Ruhl, Executor

 

Jon F. Arnold, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

 

 

 

 

NOTICE OF PRIVATE SALE

 

In Re:                                                                                                                          :           IN THE COURT OF COMMON PLEAS OF

Petition of the Board of School Directors                  :           LEBANON COUNTY, PENNSYLVANIA

Of the Lebanon School District for                            :           CIVIL ACTION – LAW

Approval of a Private Sale of Real Estate                  :           NO. 2021-00138

 

NOTICE OF PRIVATE SALE

 

NOTICE is hereby given that on February 9, 2021, the Board of Directors of the Lebanon School District, filed a Petition for the sale of the following tracts of real estate:

Northwest Elementary School containing 2.65 acres located on the northwest corner of the intersection of North Ninth Street and Maple Street in Lebanon City; and the second parcel of land containing .95 acres, adjacent to the elementary school building, the identified tax parcel I.D. numbers are 07-2336938-372822 and 07-2336473-372837, respectively.

The Court has fixed the 6^th day of May, 2021, at 1:30 o’clock P.M. at Lebanon County Court of Common Pleas, located at 400 South Eighth Street, Lebanon, Pennsylvania 17042, as the time and place for the hearing on said petition when and where all persons interested may appear and show cause, if any they have, why the prayer of the petitioner should not be granted.

 

Michael S. Bechtold, Esquire

Buzgon Davis Law Offices

525 South Eighth Street

Lebanon, PA 17042-0049

Phone: (717) 274-1421

E-mail: Bechtold@buzgondavis.com

Solicitor for Lebanon School District

 

ASSUMED NAME NOTICE

 

NOTICE IS HEREBY GIVEN that an application for registration of the assumed

name Lebanon Quality Control for the conduct of business in Lebanon County, Pennsylvania,

with the principal place of business being 10 Enterprise Court, Lebanon, PA was made to the

Department of State of Pennsylvania at Harrisburg, Pennsylvania, on the 25th day of January

2021, pursuant to 54 Pa.C.S. §311. The name of the entity owning or interested in the said

business is Everlast Roofing, Inc.

 

McNEES WALLACE & NURICK LLC

100 Pine Street

P.O. Box 1166

Harrisburg, PA 17108-1166

 

 

NOTICE OF ORDINANCE

 

YOU ARE HEREBY NOTIFIED that the West Lebanon Township Board of Commissioners shall consider Ordinance No. 525 for adoption and enactment at their meeting scheduled for Monday, May 3, 2021 at 7:00 P.M. at the West Lebanon Township Municipal Building located

at 322 North 22nd Street, Lebanon, Pennsylvania, 17042. Ordinance No. 525 amends the Township’s Parking Regulations by creating a NO PARKING ZONE along the North Side of

Lehman St. from N. 16th St. extending west to N.22nd St. A complete copy of the Ordinance may be inspected and/or copied for the cost of copying at the following locations:

West Lebanon Township Municipal Building 322 North 22 nd Street, Lebanon, PA 17046

Lebanon County Law Library, 400 South 8th Street, Lebanon, PA 17042

Lebanon Daily News, 718 Poplar Street, Lebanon, PA 17042

 

___________________________________

Secretary, West Lebanon Township

 

 

 

 

CHANGE OF NAME

 

NOTICE IS HEREBY GIVEN that a Petition has been filed in the Court of Common Pleas of Lebanon County, Pennsylvania, seeking to change the name of Michelle Rodriguez to Manuel Adriano Rodriguez. A hearing on the Petition will be held on Tuesday, May 18, 2021, at 2:30 p.m., Lebanon County Courthouse, 400 South 8^th Street, Lebanon, Pennsylvania, at which time any persons interested may attend and show cause, if any, why the Petition should not be granted.

 

Matthew S. Kopecki

Attorney for Petitioner, Michelle Rodriguez

1118 Penn Avenue

Wyomissing, PA 19610

(610) 685-8000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGES OPINION

 

In Re: Petition of the Township of Jackson to Sell Lot 107, Wheatland Manor

 

Civil Action-Equity-Land Use Planning-Residential Community-Publicly Dedicated Land-Recreational Use-Township Attempt to Sell-Objection by Residents-Pennsylvania Donated or Dedicated Property Act-Applicability-Discretion of the Court-Equitable Estoppel-Definition of Public Interest

 

The developers of a residential community designated a centrally located lot as land to be used by the residential community for recreational purposes in lieu of required payment of up to $1,500.00 per lot to the Township of Jackson (“the Township”) to help facilitate and to improve recreational areas within the Township.  When the developers determined it would be more lucrative to develop the centrally located plot into housing lots, the developers designated a different lot as the recreational space that was not ideal for recreational purposes, as it was heavily wooded, contained drainage and private road easements and had a small portion of land that connected the lot with a public roadway.  The Township accepted the transfer of the lot in return for forbearance by the Township of payment by the developer of recreational fees that greatly would have exceeded the value of the lot.  Discussed options for use of the lot as a recreational area generated objections from residents.  The Township filed a Petition for Leave to sell the lot for private development with use of the proceeds to improve other Township recreational facilities.

 

1. The Pennsylvania Donated or Dedicated Property Act (“DDPA”), 53 P.S. 3381 et seq., provides that when a property is held by a political subdivision as a trustee, the property shall be used for the purpose for which it originally was dedicated or donated.

 

2. The DDPA also allows the political subdivision to request court approval for the sale of publicly dedicated property when continuation of the original use of the property as a public facility no longer is practicable or possible and has ceased to serve the public interest.

 

3. The Orphan’s Court is afforded broad discretion in determining a request for approval of the sale of publicly dedicated land.

 

4. The Court is authorized to consider protest and comments by residents who would be affected by the proposed decision.

 

5. The DDPA applies to the proposed sale of a property that previously was dedicated for use as a public park.

 

6. A property dedicated as a public park encompasses the property that was purchased by the municipality for the purpose as part of a quid pro quo exchange.

 

7. The DDPA was not intended to abrogate other salient common law principles, including the Public Trust Doctrine.

 

8. While the court must give due deference to the public policy making decision of the municipality, the ultimate decision of whether publicly dedicated property can be sold rests with the court.

 

9. Equitable estoppel is designed to promote fundamental fairness in human interactions.

 

10. The elements of equitable estoppel are: (1) misleading words, conduct or silence by a party against whom estoppel is asserted; (2) unambiguous proof of reasonable reliance upon the misrepresentation of the party asserting estoppel; and (3) the lack of a duty to inquire on the party asserting estoppel.

 

11. The Restatement of Property Section 524(c) provides that an oral promise or representation that certain land will be used in a particular way, though otherwise unenforceable, is enforceable to the extent necessary to protect expenditures made in reliance thereon.

 

12. The statutory authority contained in the DDPA is not inconsistent with the common law principles of equitable estoppel.

 

13. A township owes a duty of good faith when addressing land use issues.

 

14. The doctrine of equitable estoppel applies where the Township communicated to the residents of the community that the lot would not be developed for residential purposes and would be a park or recreational space and the residents relied upon those representations in electing to purchase lots within that community.

 

15. The public interest as defined in the DDPA requires respect for the expectations of numerous individual landowners who purchased property in the community believing that the Township would not sell or develop the lot that publicly had been dedicated and accepted as recreational property.

 

L.C.C.C.P. No. 2020-455, Opinion by Bradford H. Charles, Judge, January 15, 2021.

 

 

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF

LEBANON COUNTY, PENNSYLVANIA

 

ORPHANS’ COURT DIVISION

 

 

IN RE:        Petition of the Township of         :

                 Jackson to Sell                               :        NO.:  2020-455

                   Lot 107, Wheatland Manor            :

 

 

ORDER OF COURT

 

AND NOW, this 15^th day of January, 2021, in accordance with the attached Opinion, the Petition of Jackson Township to Sell Lot 107 of the Wheatland Manor development is DENIED.

 

BY THE COURT:

 

 

BRADFORD H. CHARLES

 

 

cc:     Paul C. Bametzreider, Esquire

Andrew J. Race, Esq.

Thomas P. Harlan, Esquire

Court Administration

 

 

 

IN THE COURT OF COMMON PLEAS OF

LEBANON COUNTY, PENNSYLVANIA

 

ORPHANS’ COURT DIVISION

 

 

IN RE:        Petition of the Township of         :

                 Jackson to Sell                               :        NO.:  2020-455

                   Lot 107, Wheatland Manor            :

 

 

 

APPEARANCES:

 

Paul C. Bametzreider, Esquire

Andrew J. Race, Esquire                              For Township of Jackson

 

Thomas P. Harlan, Esquire                                    For Intervenors

 

 

 

OPINION BY CHARLES, J. ,   January 15, 2021

 

This Court has been asked to decide whether Jackson Township (hereafter, TOWNSHIP) can sell a plot of land that was previously designated for recreational use.  Unfortunately, this question transcends the simple issue of whether a governmental land owner can convey property it owns to someone else.  Implicated in the dispute now before us are the applicability of Pennsylvania’s Donated or Dedicated Property Act (DDPA), and principles of equitable estoppel.  For reasons that we will articulate in far more detail within the body of this Opinion, we conclude today that the TOWNSHIP should not be permitted to monetize previously dedicated recreational space over the objections of nearby landowners who paid significant sums to live at a location they believed would be close to recreational land.

 

I.   FACTS

 

Wheatland Manor is a four-hundred fifty (450) home residential community located in Jackson Township.  Wheatland Manor was initially developed by Patrick T. Kreiser and Shawn Gerhardt-Kreiser (Hereafter KREISERS) approximately twenty years ago.  The most recent phase of the project was approved within the last two decades.  The Wheatland Manor development was mutually beneficial for both the TOWNSHIP and the KREISERS.  The development significantly increased the tax base of the former and the latter benefitted financially from the sale of hundreds of housing lots.

Like many municipalities, TOWNSHIP engaged in recreational planning as part of its overall effort to manage growth.  Stephen Sherk of Steckbeck Engineering Company created a recreational plan for TOWNSHIP that facilitated open space recreational areas.  Both before and after the recreation plan was formally adopted, a real estate developer in Jackson Township was required to pay up to $1,500 per lot to help facilitate and improve recreational areas within the TOWNSHIP.  As an alternative, a developer could provide land within the development for recreational use.

While undertaking the planning of Wheatland Manor, the KREISERS opted to donate land to the TOWNSHIP rather than pay the $1,500 per lot recreational fee.  Originally, a parcel of land located in the center of the Wheatland Manor development was chosen as the recreational space.  However, the KREISERS opted to build fourteen (14) homes on the land originally designated as a park.  In lieu of that centrally located land, the KREISERS chose Lot 107 as land to be used in Wheatland Manor for recreational purposes.  That lot contained drainage easements and a private road easement that pre-dated the development.  Most of Lot 107 was heavily wooded and only a small isthmus of land connected Lot 107 with a public roadway.  In short, Lot 107 was not ideal for recreational purposes.  In fact, the TOWNSHIP’s own Recreational Board recommended against acceptance of Lot 107 as recreational space.  Despite this, prospective purchasers of lots within Wheatland Manor were told that Lot 107 was open space reserved for recreational purposes.

The TOWNSHIP’s Board of Supervisors did not immediately accept Wheatland Manor’s offer to convey Lot 107 for recreational purposes.  After approximately seven (7) years of vacillation, the TOWNSHIP’s Board of Supervisors ultimately voted 2-1 in 2014 to accept the deed to Lot 107.  At the time, there were over four hundred (400) lots that had been developed in Wheatland Manor.  Had the TOWNSHIP not accepted Lot 107 for recreational use, the KREISERS would have been required to pay a recreation fee of $1,500 per lot.  There was some dispute about the amount of aggregate recreational fees that the KREISERS would have been required to pay had the TOWNSHIP not accepted Lot 107.  At the initial hearing, it was inferred that the KREISERS saved over $500,000 by deeding Lot 107 to the TOWNSHIP.  At the second hearing, everyone seemed to acknowledge that the amount the KREISER avoided paying was “only” $75,000.  Regardless of the amount, it is crystal clear that the KREISERS deeded Lot 107 to the TOWNSHIP in return for forbearance by the TOWNSHIP of recreational fees greater than the value of Lot 107.

After accepting conveyance of Lot 107 in 2014, the TOWNSHIP undertook an effort to identify recreational uses for Lot 107.  Stephen Sherk testified that there was an “extreme” lack of recreational facilities and areas in the development district where Wheatland Manor is located.  The TOWNSHIP Supervisors recognized this fact and discussed numerous options at Township meetings.  Long-time Township Supervisor Dean Moyer testified that each and every option discussed generated objections from people who lived in the area.  General concerns were lodged that use of heavily wooded Lot 107 as recreational space could facilitate vagrancy and drug use by teenagers.

Stephen Sherk became involved in looking for ways to use Lot 107 for recreational purposes.  Mr. Sherk testified that the lot could not be configured to accommodate soccer fields, baseball fields or recreational buildings.  However, Mr. Sherk testified that Lot 107 could host a walking trail and enough non-wooded space existed for construction of a basketball court or playground.  Dean Moyer testified that at least one person objected that a walking trail could be dangerous because children could fall off the trail and become injured.

Lot 107 directly connects Wheatland Manor with ball fields located on land owned by the Kutztown Fire Company.  We learned that the walking path proposed for Lot 107 could easily include a spur that would connect Wheatland Manor to the ball fields.  Although the land on which the ball fields is located is owned by the fire company, the TOWNSHIP invested $172,000 in those ball fields and the TOWNSHIP pays an annual rental fee to the fire company for using the land as ball fields.  Residents of Wheatland Manor pointed out that using Lot 107 as a connector to the ball fields would provide children in Wheatland Manor with the ability to walk to baseball/softball games without having to traverse busy and potentially dangerous roadways.

In March of 2020, the TOWNSHIP’s Recreational Board recommended to the Board of Supervisors that Lot 107 be sold for purposes of creating at least one lot for residential construction.  The issue was placed on the agenda of the TOWNSHIP Supervisors.  Wheatland Manor resident Lori Walkowiak learned about the TOWNSHIP’s plan and attended the TOWNSHIP meeting to voice her objection to the proposed sale.  Ms. Walkowiak even prepared a power-point presentation in support of her plea to retain Lot 107 as recreational land.  Ms. Walkowiak was rebuffed by the TOWNSHIP Supervisors, who voted unanimously to proceed with the sale of Lot 107.

On July 20, 2020, the TOWNSHIP filed a Petition for Leave of Court to sell Lot 107.  This Court entered an Order on July 28, 2020 directing that public notice of a hearing be effectuated.  A hearing was commenced on September 11, 2020.  TOWNSHIP Supervisors Tom Houtz and Dean Moyer both testified about efforts made by the TOWNSHIP to investigate recreational uses for Lot 107.  Both Mr. Houtz and Mr. Moyer testified that the topography of Lot 107 did not favor recreational use.  Moreover, the fact that Lot 107 was heavily wooded and almost none of it was adjacent to public roadways would have caused serious security issues.  In the end, both Mr. Houtz and Mr. Moyer agreed that transforming Lot 107 into recreational space would not have been viable from a cost-benefit perspective.  Thus, the TOWNSHIP proposed to sell Lot 107 for private development and then use the proceeds to improve other recreational facilities available within the TOWNSHIP.

Consulting engineer Stephen Sherk also testified.  Mr. Sherk agreed that Lot 107 was not ideally suited for recreational space.  Mr. Sherk testified that the best use of Lot 107 would be as host to a walking trail and a playground or basketball court.  Mr. Sherk testified that Lot 107 could be developed for those purposes at a cost of $80,000.

Lori Walkowiak also testified.  She and her husband purchased property adjacent to Lot 107 because they were promised: “You will never have a house behind you.”  When the Walkowiaks learned that Lot 107 was going to be sold and developed, they objected.  They also presented a petition signed by 167 people that asked for Lot 107 to remain as recreational property.

Unfortunately, not enough time existed on September 11, 2020 to complete the hearing that was begun on that date.  Therefore, another hearing was scheduled for November 24, 2020.  The TOWNSHIP was again directed to publicize the date of the hearing so that all interested persons could attend.  That being said, this Court was confident that the Walkowiaks would communicate information about the hearing to other interested neighbors.

At the second hearing, Lori Walkowiak finished her testimony and her husband, Carl, added to it.  The Walkowiaks provided a timeline relating to Lot 107.  The salient portions of that timeline were as follows:

• May 3, 2004 – TOWNSHIP approved the final plan for Phase 3 of the Wheatland Manor development. Lot 107 was included as a public park in that plan.
• February 24, 2005 – A deed was offered to TOWNSHIP that designated that Lot 107 would “forever be a public park.”
• February 6, 2012 – Jackson Township published a Recreation Plan that designated Lot 107 as “ideally located” for a small-scale neighborhood park.
• March 3, 2014 – The TOWNSHIP accepted the deed to Lot 107 for use as a public park.
• May 1, 2017 – The TOWNSHIP approved renaming of Lot 107 to “Wheatland Woods Park”. That same year, the TOWNSHIP allotted $75,000 for development of the land as a park.
• Early 2018 – A preliminary plan for the park that included a path, a basketball court and fencing was publicized. The TOWNSHIP also accepted a bid for tree removal in preparation for creating the park.
• 2019 – The TOWNSHIP allotted $172,000 for the development of two ball fields on land owned by the Kutztown Fire Company that was immediately adjacent to Lot 107.
• March 2, 2020 – The TOWNSHIP Recreation Board recommended that Lot 107 be sold.
• March 16, 2020 – Over the opposition of numerous neighbors, the TOWNSHIP’s Board of Supervisors voted to sell and develop Lot 107.

 

In addition, the Walkowiaks presented Exhibit 13, which was a list of all properties to be developed in Phase 3 of the Wheatland Manor plan.  Exhibit 12 revealed that lots that were located close to Lot 107 were sold at a premium.

Both Mr. & Mrs. Walkowiak reiterated that the location of their property adjacent to Lot 107 was one of the reasons the Walkowiak family chose to purchase their property.  The Walkowiaks testified that they relied upon representations by their realtor, the developer and the TOWNSHIP that Lot 107 would remain as a park.  On cross-examination, Mrs. Walkowiak acknowledged that when she and her husband purchased their home in 2011, the plot plan they were shown referred to Lot 107 as a “proposed park”.  Both Mr. & Mrs. Walkowiak testified that they paid more to live next to Lot 107 than they would have paid to purchase a house in the middle of the Wheatland Manor development.

Following testimony by the Walkowiaks, community activist Ann Gruber provided testimony.  She expressed frustration that TOWNSHIP’s Supervisors did not prioritize recreational space within the township.  Ms. Gruber pointed out that the TOWNSHIP had a $4.5 million reserve that could and should have been used for recreational purposes, including the development of Lot 107.

Mike Dunkle also provided testimony.  Mr. Dunkle served as Chairman of the Jackson Township Recreation Board for six (6) years.  He described the extensive involvement of the Recreation Board with Lot 107.  He stated that the Recreation Board did not view Lot 107 as ideal.  In fact, the Recreation Board recommended to the TOWNSHIP in 2014 that KREISERS’ offer of Lot 107 for recreational purpose be rejected.  Instead, the Recreation Board recommended that the TOWNSHIP accept $75,000 from the KREISERS as recreation fees.  He acknowledged that neighbors in Wheatland Manor were “dead-set against” returning Lot 107 to the KREISERS, even if that meant that the KREISERS would pay $75,000 for recreation.  Once the TOWNSHIP rejected the Recreation Board’s recommendation, and accepted a deed to Lot 107, the Board worked with Steve Sherk in an effort to develop a recreational use for Lot 107.  However, Mr. Dunkle reiterated that “we didn’t want that lot” and it was difficult to discern a viable plan given the topography and heavily wooded nature of Lot 107.

Mr. Dunkle is also a resident of Wheatland Manor.  He acknowledged that the developer promised there would be a park in Wheatland Manor.  He also acknowledged that some residents paid a premium for their lots because those lots were located near “open space”.

TOWNSHIP supervisors Tom Houtz and Dean Moyer provided additional testimony.  Basically, the testimony of Mr. Houtz and Mr. Moyer reiterated what they had previously said about Lot 107.  However, Mr. Moyer added that when the TOWNSHIP voted to accept a deed to Lot 107, he opposed the decision.  He explained: “I feel Jackson Township served the builder and their tax pockets.”

The final individual to provide testimony on November 24, 2020 was Jeffrey Dresely.  Mr. Dresely testified that he lives in close proximity to Lot 107.  He stated that one of the “selling points” of his property was its close proximity to parkland.  He described the ability to be located within close walking proximity of a park to be “great”.

Toward the end of the second day of testimony, Mrs. Walkowiak explained that she had asked other neighbors interested in Lot 107 to send letters directly to the Court.  The Court explained that these letters were considered “ex parte communications” and were intercepted before this jurist ever read them.  Mrs. Walkowiak apologized for encouraging neighbors to write letters.  However, she explained that those neighbors wanted to provide information to the Court.  Because of the above, the Court set aside yet another day to hear testimony from neighbors who wanted to provide input.  Because some of the neighbors had a concern about attending Court during a pandemic, this jurist agreed to hear information by telephone from the neighbors.  A process was created by which neighbors could provide information to the Court via telephone on January 5, 2021.

On January 5, 2021, we heard from four (4) additional witnesses.  One was Debra Weaver nee Carroll.  Ms. Weaver and her husband live on what was formerly known as Lot 108, which is in close proximity to Lot 107.  Ms. Weaver testified that she and her husband paid $38,000 for their lot, which she described as a “premium amount”.  The premium was based on the size of Lot 108 as well as its proximity to a public park.  When Ms. Weaver and her husband purchased their lot, they relied upon a “recorded plot plan” that showed Lot 107 to be a “proposed park” and upon the deed to Lot 107 that stated the land “shall forever be a park.”  Ms. Weaver testified that she and her husband were willing to pay the “premium” amount because they recognized there was value to the land’s proximity to a park and the Fire Company ball fields located directly adjacent to the park.

Perhaps coincidentally, Ms. Weaver acknowledged that she worked as a real estate agent prior to her retirement.  In that capacity, she served as the agent for the KREISERs and was responsible for marketing all of the plots in Phase 3 of Wheatland Manor.  Ms. Weaver testified that when she marketed the lots, she procured signatures from all purchasers on a plot plan that showed Lot 107 to be a “proposed park”.  Ms. Weaver also testified that she relied upon the deed that designated Lot 107 a “forever a public park”.  Ms. Weaver believed that all of the residents located in close proximity to Lot 107 paid a premium of about $5,000 in return for the privilege of living close to the park.

Matthew Lattman also provided information.  Mr. Lattman lives at Lot 105, which is located adjacent to Lot 107.  He and his wife originally purchased the lot and paid a $5,000 premium because the lot abutted park land.  Mr. Lattman testified that he was shown a development plan that designated Lot 107 as a “proposed park” and he was told by the developers that Lot 107 would never be developed[1].  Mr. Lattman recognized that the entirety of Lot 107 could not be used as a park; he opined that the wooded area could be dangerous to children because it was not readily accessible or visible to neighbors or police.  Mr. Lattman also stated that he did not trust the TOWNSHIP to make appropriate decisions regarding Lot 107; he feared that the TOWNSHIP would rezone the property and sell it for some commercial use.

Rachel Schoffstall and her husband live on property that also abuts Lot 107.  The Schoffstalls built their home in 2004.  They were told by the builder that the land behind their property would be a park and they paid a $5,000 premium price for the lot because they did not want anything built behind their residence.  Ms. Schoffstall stated that the sale and development of Lot 107 would be “completely against what we were told.”  The Schoffstalls were aware that the land was accepted by the TOWNSHIP as a park and wanted it to remain as such.

The final witness who provided information in January was Kevin Williams.  Mr. Williams is the elected auditor for Jackson Township.  He does not live in Wheatland Manor.  He stated that it was best from an economic standpoint that Jackson Township “divest itself of that property.”

Numerous other Wheatland Manor residents wrote letters to this Court.  Those letters were not read by this jurist or considered as part of this decision.  All were given the opportunity to provide information in person or via telephone.  Most chose to do so.

Following the testimony that was presented on January 5, 2021, this Court took the issue of what to do with Lot 107 under advisement.  We issue this Opinion today in order to deny the TOWNSHIP’s request to sell and develop that lot.

 

 

II.  DISCUSSION

 

Before we embark upon an analysis of the law – which will be no small task – we want to begin by outlining our factual findings about the events that lead to this litigation.

It is obvious to this Court that both the KREISERS and the TOWNSHIP wanted the Wheatland Manor development to proceed.  The development represented growth in TOWNSHIP that both increased the TOWNSHIP’s tax base and demand for services provided by township businesses.  The economy in and around Wheatland Manor benefitted from the development.  Yet the costs to develop Wheatland Manor were significant.  One of those costs was a recreational fee imposed by the TOWNSHIP.  Assuming that fee was imposed for each of the 450 lots contained in Wheatland Manor, the recreation fees alone could have potentially cost the KREISERS in excess of $500,000.

Recognizing that its recreation fee could disincentivize development, the TOWNSHIP created an alternative to payment of its recreation fee.  If a developer would agree to donate land to be used for recreational purposes, the TOWNSHIP would agree to forgo its recreation fee.  Obviously, it was easier and less expensive for the KREISERS to donate land instead of offering a cash payment whenever a lot was sold.  Both the KREISERS and the TOWNSHIP would have recognized this reality.

Originally, the KREISERS designated a centrally-located plot of land in Wheatland Manor for recreational space.  The TOWNSHIP was willing to accept this centrally-located land in lieu of receiving a recreational fee.  However, at some point, the KREISERS determined that it would be more lucrative to develop the centrally-located plot of land into housing lots.  As it turns out, the KREISERS used the originally-designated recreational space to create fourteen (14) housing lots.  Instead of the centrally-located land, the KREISERS then designated Lot 107 as recreational space.  Everyone associated with Wheatland Manor, including the TOWNSHIP, realized that Lot 107 was not ideally suited as recreational space.  The lot was heavily wooded.  Its topography was problematic.  A large drainage swale was located on a portion of Lot 107, as was a pre-existing private road easement.

Because Lot 107 was not ideal for recreational use, the TOWNSHIP delayed accepting a deed to Lot 107 for nearly seven (7) years.  Yet during this time, the KREISERS continued to develop the land in Wheatland Manor and purchasers continued to see that Lot 107 was designated as recreational space.  As lots in Phase 3 of Wheatland Manor were sold one by one, the KREISERS continued to withhold payment of the $1,500 per lot recreation fee in the hope/anticipation that the TOWNSHIP would eventually accept Lot 107 as recreational space.

Eventually, the TOWNSHIP agreed to accept a deed to Lot 107.  The TOWNSHIP did so knowing that its own Recreation Board recommended against accepting the lot.  It is obvious to this Court that the TOWNSHIP’s primary motivation in accepting Lot 107 was economic.  In essence, the TOWNSHIP agreed to accept Lot 107 as an accommodation to a developer that had invested millions in a development that contributed millions to the Jackson Township economy.  Availability of recreational space for residents was not the primary factor motivating the TOWNSHIP to accept Lot 107.

We do not fault the TOWNSHIP for its decision to accept a sub-optimal plot of land in lieu of a recreational fee.  The TOWNSHIP’s Board of Supervisors had the daunting responsibility to balance a host of public policy factors in order to promote and manage growth within the TOWNSHIP.  Providing recreational space for residents is only one of many such factors.  It is because of decisions like the one made by TOWNSHIP regarding Lot 107 that the TOWNSHIP is in such a healthy financial condition today.  Still, as it relates to the dispute now before this Court, we conclude with little hesitation that from the TOWNSHIP’s perspective, the  situation involving Lot 107 has always been more about economics than it has been about recreation.

During the period of time both before and after the TOWNSHIP accepted the deed to Lot 107, people continued to purchase lots in Wheatland Manor believing that Lot 107 would remain as open recreational space.  Some people viewed Lot 107 as providing a pathway from the Wheatland Manor development to the ball fields located on land owned by the Kutztown Fire Company.  Others viewed Lot 107 as a place where a walking path could be created through the wooded land.  Still others hoped that a basketball court and/or playground would be placed on Lot 107.  No one considered the possibility that a road would extend into Lot 107 along which a house or houses would be constructed.  Had the possibility of active development on Lot 107 been disclosed from the beginning, that could and in some cases would have affected the decisions made by people to purchase land in the Wheatland Manor development

Unfortunately, the KREISERS and their realtor marketed land adjacent to Lot 107 by stating: “You will never have a house behind you.”  People who purchased these lots abutting Lot 107 actually paid a premium to be located next to open space instead of additional houses.  All of the individuals who purchased property did so in reliance upon the belief that Lot 107 would remain as open recreational space.  If development of Lot 107 is approved, all of these individuals would become the victims of what is commonly known as “bait and switch”.

With the above being said, most residents of Jackson Township would benefit by the sale of Lot 107.  That sale would generate funds that the TOWNSHIP has promised will be used exclusively to improve other recreational facilities.  While the recreational facilities to be improved may not be located in or near Wheatland Manor, the improved facilities would be accessible to all Jackson Township residents, including those who reside in Wheatland Manor.

The factual conclusions outlined above serve as a backdrop for our analysis of the complicated legal issues that are now before this Court.  Had we determined different facts to exist, our legal analysis could have been simplified.  Nevertheless, we remain tethered to the truth as we have found it to exist even if that truth creates a more complicated legal analysis.  With that having been acknowledged, we will turn to the two primary legal issues now before this Court.

 

1. DDPA Applicability

Pennsylvania’s DDPA provides that when property is held by a political subdivision, as Trustee, the lands “shall be used for the purpose or purposes for which they were originally dedicated or donated…”  53 P.S. § 3383.  However, an escape clause was created in the DDPA when, “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…” 53 P.S. § 3384.  Under such circumstances, the political subdivision can request a Court Order to, inter alia, approve the sale of the property.  See, 53 P.S. § 3384.  With respect to such petition, broad discretion is afforded to a local Orphan’s Court judge.  See, In RE: Erie Golf Course, 992 A.2d 75 (Pa. Super. 2010).  In exercising this discretion, the Court has the ability to consider protest and comments by residents who would be affected by the proposed decision.  See, 53 P.S. § 3385.

In this case, the TOWNSHIP argues that our decision is governed entirely by the language of the DDPA.  According to the TOWNSHIP, ample evidence exists that it is not “practicable or possible” to transform Lot 107 of Wheatland Manor into a viable recreation area.  TOWNSHIP also argues that in rendering a decision, this Court is constrained to consider only the “public” interest and not the interest of limited private citizens who may be adversely affected by the TOWNSHIP’s decision.  Pursuant to that legal theory, the TOWNSHIP argues that it submitted ample evidence that Lot 107 is not a suitable space for “public” recreation.

In support of its argument that the DDPA exclusively governs this dispute, the TOWNSHIP initially argued that Lot 107 was “donated” to the TOWNSHIP by the KREISERS.  This Court immediately expressed skepticism about the “donation” argument, pointing out that there was a quid pro quo paid by the TOWNSHIP in the form of forbearance on collection of substantial recreation fees.  Once the TOWNSHIP heard the Court’s skepticism about its donation argument, the TOWNSHIP shifted its approach and argued that Lot 107 was “offered for dedication” as that term is defined in § 3383 of the DDPA.

Within the past ten (10) years, Pennsylvania’s Supreme Court has been asked to address the scope of the DDPA on two (2) occasions.  One case, In RE: Erie Golf Course, 992 A.2d 75 (Pa. 2010) was seventeen (17) pages in length.  The other, In RE: Borough of Downingtown, 161 A.3d 844 (Pa. 2017) was thirty-three (33) pages long.  There is good reason for the verbosity of both decisions.

Unfortunately, the DDPA was poorly crafted legislation.  Our Commonwealth’s highest Court kindly described the DDPA as “ambiguous”, particularly as it relates to whether the concepts of “dedication” and “purchase” are intended to be mutually exclusive.  See, In RE: Erie Golf Course, at page 85.  Specifically, the Supreme Court wrestled with how to reconcile the language of DDPA § 3382 and § 3386.  The former indicates that the DDPA applies to lands that were “donated” or “offered for dedication to such use, where no formal record appears as to acceptance by the political subdivision…”  The latter states: “Nothing in this act shall be construed to limit or effect the control by a political subdivision of public lands or buildings acquired by such political subdivision by purchase…”

As this Court evaluated Sections 3382 and 3386, our visceral impression was that the DDPA was not intended to address situations where a political subdivision “purchased” a parcel of land.  Moreover, because we viewed TOWNSHIP’s acquisition of Lot 107 to be part of a bargained-for exchange with the KREISERS whereby the TOWNSHIP accepted Lot 107 in return for relieving the KREISERS of any obligation to pay a recreation fee, our initial belief was that the DDPA did not control the dispute now before this Court.

Our initial impression about the applicability of the DDPA changed when we read In RE: Erie Golf Course and In RE: Borough of Downingtown.  Both cases established that the DDPA is broader in application than we had first believed.

In In RE: Erie Golf Course, a golf course and accompanying land was conveyed to the City of Erie by a private club in return for consideration of $1.00 and assumption of a small mortgage.  The recorded deed included a restrictive covenant that preserved the property’s use as a golf course indefinitely.  For eighty (80) years, the city acted in a manner consistent with this deed restriction; the land was used as a golf course and the city paid expenses to maintain the course.  However, in 2006, as a result of “economic challenges”, the city was forced to permanently close the golf course.  Thereafter, the city sought to sell the property.  To accomplish relief from the deed restriction, the city filed a petition under the DDPA.  Objectors appeared to oppose the sale of the golf course property.  These objectors argued that the so-called “Common-Law Public Trust Doctrine” should govern instead of the DDPA.

As noted above, the Supreme Court was not blind to the “ambiguities” of the DDPA.  After highlighting the fact that lower courts had interpreted the DDPA in different ways, the Court was forced to acknowledge that “colorable arguments” existed as to whether “property that in any sense of the word can be regarded as “purchase” is entirely excluded from the DDPA’s coverage.” Id at page 86.  Without providing a specific definition of the phrase “dedication”, the Supreme Court held: “The title, structure, substance and history support the conclusion that the [DDPA] was intended to extend across the broader class of dedications.” Id at page 86.  The Court went on to state that because the land was accepted for a specific purpose, the court – not the municipality – should have final discretion about how the property should be used.  The Court stated:

“While substantial deference may be due generally to discretionary administrative and legislative acts, presently, the sale of the property was not discretionary with the city in the first instance in light of its fiduciary obligations and recorded covenant.”

 

Accordingly, the Erie Golf Course case was remanded to the Commonwealth Court for a “deferential appellate review of the discretionary aspects of the Orphans’ Court’s decision.” Id at page 89.  In so doing, the Supreme Court did not render a decision regarding the fundamental question of whether a sale of property can be undertaken in contravention to a specific recorded restrictive covenant.

It could fairly be predicted that the “ambiguity” of the DDPA together with the less than complete clarity provided by the Pennsylvania Supreme Court in In RE: Erie Golf Course would spawn additional litigation.  And it did.  Eventually, such litigation arrived again at the Supreme Court in the case of In RE: Borough of Downingtown.  Like its Erie Golf Course predecessor, Borough of Downingtown involved land that had been set aside for the public use and benefit during the 1920s.  That land became originally known as “Kerr Park”.  During the 1960s and 1970s, the Borough of Downingtown acquired additional lands both by purchase and by eminent domain.  The larger park that was created became known as “Kardon Park”.  As with the City of Erie, the Borough of Downingtown found itself in financial stress during the late 2000s.  In July of 2006, the Borough formally sought proposals from purchasers who would be willing to redevelop the park for a combination of commercial and residential uses.  In July of 2010, the Board of Supervisors approved the sale.  Residents of the borough objected.  The group that became known as “Friends of Kardon Park” initiated an action in equity in the Chester County Court of Common Pleas seeking injunctive relief to prohibit the Borough from carrying out its planned sale of park property.  Concurrently, the Borough filed a petition with the Chester County Orphans’ Court seeking approval of the sale under the DDPA.  The Chester County Court consolidated both actions and ended up conducting five (5) full days of hearings before denying the Borough’s petition.  This decision was appealed to the Pennsylvania Commonwealth Court, which reversed a unanimous en banc decision.  This paved the way for yet another appeal to Pennsylvania’s highest Court.

Unless this Court wanted to kill proverbial trees, it would not be possible to outline the full extent of the Supreme Court’s thirty-three (33) page analysis.  However, we will endeavor to summarize salient Supreme Court proclamations about the DDPA because it is relevant to our analysis today.

The Supreme Court in Downingtown recognized that “the fundamental purpose of the DDPA is to delineate ‘the fiduciary nature of municipalities’ obligations relative to donated and dedicate properties and [provide] for orderly relief therefrom in appropriate circumstances.’” Id at page 872.  The Court also stated that the General Assembly enacted the DDPA in part to incorporate “salient common-law principles” and “the Public Trust Doctrine” whereby property dedicated to the public use is deemed to be held in trust by the municipality for benefit of the public.  Moreover, the Court in Downingtown recognized the fundamental holding of Erie Golf Course to be “that property which was initially acquired via purchase by the local government was not excluded from the ambit of the DDPA by § 3386, which facially excludes purchased property.” Id at page 873.

Perhaps recognizing that its failure to create a specific definition of “dedication” in Erie Golf Course had engendered confusion, the Supreme Court created its own definition:

“A dedication occurs for purposes of the DDPA only when, after a property is acquired, a municipality thereafter commits it to a public use as a public facility, and the public accepts that use.”

Id at page 873 (emphasis in original)

 

Based upon that definition and the fundamental purposes of the DDPA, the Supreme Court in Borough of Downingtown specifically held:

“We therefore hold that the DDPA covers all property purchased by a municipality which has been dedicated to the public use as a public facility, and necessarily includes property which is purchased by the municipality, in part, with Project 70 Act funds, and therefore dedicated to public use as a public facility.”

Id at page 873.

 

          While expanding the reach of the DDPA in a manner “facially inconsistent” with § 3386 thereof, the Supreme Court emphasized that the DDPA could not be used as a rubber stamp for a municipality to sell donated or dedicated land at its whim.  The Court stated:

 

“Section 3383’s restriction of a municipality’s power to unilaterally change the purpose for which property has been dedicated to the public trust is a codification of a bedrock tenet of the Common Law Public Trust Doctrine, which is that ‘a municipality cannot revoke or destroy, after dedication and acceptance, the right of the public to the exclusive use of the property for the purpose designated.’  Consistent with this principle, the Common Law Public Trust Doctrine strictly prohibits a governmental body from conveying public lands to an entity or person for private use.  The DDPA retains this common law prohibition, but modifies it to afford a municipality the right to seek judicial approval for a fundamental change in the purpose for which public trust property has been used and dedicated.”

Id at page 876-877 (citations omitted)

 

The Supreme Court in Borough of Downingtown recognized that the proposed conveyance of dedicated parcels represented a “private purpose” which it recognized as “distinct from the public purpose for which the land was dedicated…” Id at page 877.  The Court thus remanded the case for a decision by the Orphans’ Court as to whether the sale of park property was in the public interest.

As we read and re-read the Supreme Court’s decisions in In RE: Erie Golf Course and In RE: Borough of Downingtown, we came to the following conclusions:

• The DDPA applies to the proposed sale of properties that were previously “dedicated” for use as a public park.
• Properties “dedicated” as a public park encompass those that were purchased by a municipality for that purpose as part of a quid pro quo
• The DDPA was not intended to abrogate other “salient common-law principles”, including the “Public Trust Doctrine”.
• The DDPA does not afford a municipality with unfettered discretion to sell property that had been “dedicated” as a public park. A Court of Common Pleas sitting as an Orphans’ Court has discretion to determine whether the sale should be approved or disapproved.
• While a Court of Common Pleas must give “due deference” to public policy decision making of the municipality, the ultimate decision of whether publically dedicated lands can be sold rests with the local Orphans’ Court.

To condense these summaries even further, we have reached the conclusion that the DDPA provides municipalities with a tool to avoid prior promises relating to land use, but the tool is limited in scope and tempered by the ability of the Court to overturn a change of use that is not deemed appropriate to the welfare of the public.

Translated to the dispute now before this Court, we hold, contrary to our initial impression, that the DDPA does apply to the facts of this dispute.  While we continue to believe that Lot 107 was not “donated”, we now conclude that the land was “dedicated” when it was sold by the KREISERS in return for the TOWNSHIP’s forbearance in collecting substantial recreation fees.  Applicability of the DDPA having been acknowledged, we now turn to the question of whether equitable estoppel is implicated in this case.

 

1. Equitable Estoppel

 

Estoppel is a legal principle designed to promote fundamental fairness within human interaction.  It is defined as “a bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as true.” Black’s Law Dictionary (9^th. Ed.) at page 629.  The concept of equitable estoppel applied in a wide variety of legal settings.

The doctrine of “equitable estoppel” has evolved in land use litigation to ensure that fairness governs interactions between property owners, property developers and municipalities.  Generally speaking, the elements of equitable estoppel are (1) misleading words, conduct or silence by a party against whom estoppel is asserted; (2) unambiguous proof of reasonable reliance upon the misrepresentation of a party asserting estoppel; and (3) the lack of a duty to inquire on the party asserting the estoppel.  See, Township of Radnor v. Goshen Holding Company, 238 A.3d 545 (Pa. Cmwlth. 2020); Chester Extended Care Center v. Department of Public Welfare, 586 A.2d 379 (Pa. 1991).

The concept of land use estoppel was incorporated into the Restatement of Property.  Section 524 of the Restatement is entitled “Promises Enforceable by Estoppel.” Section 524(c) of the Restatement states:

 

 

“(c) Promises by conveyors.  Not infrequently promises coming wholly or partly within the rule stated by this section are made as a part of the negotiations leading to a sale of land to the promisee.  To induce a prospective purchaser to buy, or to persuade him to buy subject to restrictions upon his use, the vendor will state that other land owned by him will be used or sold subject to like restrictions.  Such promises not infrequently refer to a plat which indicates the restrictions.  The promises may later be incorporated in the conveyance by specific language or by reference to a source such as a plat in which they may be found to exist in written form.  If so, they become enforceable according to the tenor.  Yet, even though no so incorporated, they can be enforced by the promise if he reasonably relies upon them in purchasing or in making improvements upon the land after it is purchased.”

 

 

Illustrations were included to provide examples of how § 524 can be applied.  The illustration contained under § 524 (c) references a situation where a deed is conveyed with the understanding that land will be used only for residential structures.  The seller verbally tells the purchaser that other lands he owns in the vicinity will be subject to the same “residential structure only” restriction.  In reasonable reliance upon this representation, the purchaser proceeded to take deed to the property.  Under this illustration, “The seller may be enjoined from selling the other land free from the restriction.”[2]

A key case involving Restatement of Property § 524 is Haines v. Minnock Construction Company, 433 A.2d 30 (Pa. Super. 1981).  The facts of Haines require special emphasis because they are relatively close to the facts in this dispute.

In Haines, the plaintiff, Christina Haines, investigated the purchase of a townhouse at Sewickley Heights Manor.  The townhouses were being developed by Minnock Construction Company.  Ms. Haines testified that she was interested in purchasing a townhouse located in a “quiet and private area.”  She was shown a plan that did not depict any development in the wooded area adjacent to her townhouse.  The brochure she was given described Sewickley Heights Manor as sitting “on 115 acres of heavily wooded rolling Pennsylvania hills.”  Another brochure stated:

“This is a fresh and special place where coming home is a whole new way of living.  Your townhouse sets back, nestled in the beauty of its own tree-shaded private land.  All the area’s natural charm has been preserved.  We left untouched the generous and quiet forest.”

 

In addition, the “residential area guide” prepared by Minnock described the area adjacent to Ms. Haines’ townhouse as “open space”.

Four (4) years after Ms. Haines purchased her townhouse, construction crews started staking out the “open space” in preparation for construction of a “commercial building” and another townhouse building.  Ms. Haines filed an injunction seeking to prohibit that construction.

The Haines case originally proceeded upon a theory proffered by Ms. Haines that she possessed an easement over the open space behind her townhouse.  The Superior Court rejected this argument, explaining that creation of an easement is covered by the Statute of Frauds and there was nothing in writing that afforded Ms. Haines with an easement to the “open space” behind her townhouse.  However, the Superior Court did not end its analysis with this conclusion.  The Court stated:

“Finding that the oral promise to keep the area as open space has not met the requirements of the Statute of Frauds does not mean that it may not be enforced as to the Appellant.  The promise is enforceable by estoppel under Restatement of Property § 524, which provides as follows:…An oral promise or representation that certain land will be used in a particular way, though otherwise unenforceable, is enforceable to the extent necessary to protect expenditures made in reliance upon it.”

 

The Superior Court held that the Minnock had made representations regarding the open space behind Ms. Haines’ townhouse.  The Court held that Ms. Haines relied upon these representations by purchasing the townhouse.  The Court stated:

“Appellee was particularly interested in the townhouse she purchased because of its wooded charm and beauty and she had every reason to expect that it would remain that way.  Appellee made the substantial expenditure involved in purchasing the townhouse because of her reliance upon the promise that open space would remain in that condition.”  Id at page 35.

 

Accordingly, the Superior Court affirmed the trial judge’s decision to enjoin construction in the “open space” adjacent to Ms. Haines’ townhouse.

This case is like Haines in many respects.  Here, as in Haines, prospective purchasers of property were told that a plot of land would be used as an open space park.  Relying upon representations that the property would not be improved with a structure, the purchasers proceeded to expend considerable funds to acquire their residential property.  In this case, some of the purchasers even paid a premium to live in a residence located close to a public park.  Nevertheless, in both Haines and in this case, development was pursued in a manner contrary to what was originally promised.  In Haines, equitable estoppel was applied to prevent the development from proceeding.  The argument that Haines compels an identical result in this case is powerful.

TOWNSHIP argues that Haines involved a seller of real estate who made direct promises in an effort to incentivize someone else to purchase, whereas TOWNSHIP considers itself to be a subsequent grantee from whom no promises were made.  There are several problems with the TOWNSHIP’s argument.  First, TOWNSHIP approved the Phase 3 development plan that designated Lot 107 as a “proposed” public park.  This enabled KREISERS to sell land abutting Lot 107 at a premium price.  Second, TOWNSHIP never advised prospective purchasers at Wheatland Manor that it would use Lot 107 for any other purpose.  Third, TOWNSHIP accepted a deed to Lot 107 in lieu of accepting recreational fees, thus indicating to everyone that Lot 107 was recreational land.  Fourth, the deed to Lot 107 conveyed the lot “forever as a public park…” (See, Exhibit 1).  Fifth, TOWNSHIP’s recreation, parks and open space plan dated February 6, 2012 references Lot 107 as “ideally located for a small-scale neighborhood park…” Sixth, on May 1, 2017, TOWNSHIP voted to re-name Lot 107 as “Wheatland Woods Park”.  That same year, the TOWNSHIP budgeted approximately $75,000 for the development of Lot 107 as a park.

As a general proposition, a township owes a duty of good faith when addressing land use issues.  See, generally, Highway Materials v. Board of Supervisors, 974 A.2d 539 (Pa. Cmwlth. 2009).  In the opinion of this Court, by acting in the manner set forth above, TOWNSHIP communicated to residents of Wheatland Manor that Lot 107 would not be developed for residential purposes.  To the extent that residents of Wheatland Manor relied upon representations that Lot 107 would be a park or recreational space, the TOWNSHIP was as responsible for incentivizing that reliance as were the KREISERS.  Accordingly, we conclude that the Doctrine of Equitable Estoppel applies with respect to TOWNSHIP’s current desire to develop the property for residential construction.

 

1. Approval for the Sale of Lot 107

In the absence of the DDPA, we would have concluded with little difficulty that fundamental fairness and the Doctrine of Equitable Estoppel would preclude development of Lot 107.  Dozens – and likely more – residents of Wheatland Manor purchased and developed lots believing that the development would include a public park.  The TOWNSHIP actively facilitated that belief.  In the face of objections lodged by people who relied to their detriment upon the premise that Wheatland Manor would include a public park, it would be neither appropriate nor consistent with common law principles for TOWNSHIP to develop Lot 107 into residential property.

The most difficult component of our analysis involves the question of how to respect and/or reconcile the DDPA and the Doctrine of Equitable Estoppel.  The DDPA was designed to provide townships with a vehicle to extricate themselves from past land-use promises, and that is precisely what TOWNSHIP wishes to do in this case.

The TOWNSHIP points out that the DDPA was enacted to promote the public welfare, and it defines “public” as the entire population of TOWNSHIP.  On the other hand, equitable estoppel primarily inures to the benefit of a smaller number of citizens who relied to their detriment on information communicated about how Lot 107 would be utilized.

In conducting an inquiry as to what is in the interest of the “public”, we cannot forget that residents of Wheatland Manor are part of the “public”.  Should our definition of what is in the “public” interest be expansive so that it encompasses a global evaluation of what would benefit the majority of all Jackson Township residents, or should our view of the “public” be more limited in scope to encompass citizens who would be most affected by Lot 107 and its usage?  The law does not provide a clear answer to this question…and the question itself is complicated by the deference that we must and will afford to the policy-making decisions of the Jackson Township Board of Supervisors.

This Court has always possessed a keen respect for the separation of powers written into our system of government by its founding fathers.  As a general and near sacrosanct principle, Courts should not legislate.  As it relates to determining public policy, it is the job of legislatures to respond by passing laws and it is the job of the executive to approve and enforce those laws.  The job of Courts should be to adjudicate disputes, including those that involve interpretation of laws passed by the legislature.  Translated to a local level, this Court should not act as some sort of “super-supervisor” that could be accessed by citizens who disagree with policy making undertaken by the duly elected Township Board of Supervisors.

In this case, TOWNSHIP’s Board of Supervisors has determined as a matter of public policy that Lot 107 should be sold and that the proceeds of that sale should be used to improve other recreational facilities within Jackson Township.  Some residents no doubt approve this decision.  Others do not.  It is not our role to second-guess the wisdom of the Board of Supervisors’ as to how its recreational resources should be allocated.  We therefore accept the TOWNSHIP’s public policy determination that selling Lot 107 would be beneficial for most residents of Jackson Township.

Unfortunately, reaching this conclusion does not end our inquiry.  Unlike TOWNSHIP officials, we cannot discount the importance of members of the “public” who might not be numerous enough to constitute a plurality of township residents.  Our role requires us to consider and respect the interests of the entire “public”, and that includes that non-majority who would be most affected by a sale of Lot 107.

Superimposed upon the question of whether to view the term “public” from a broad or narrow perspective is the concept of equitable estoppel.  As outlined above, numerous property owners purchased their lots in Wheatland Manor in part because a park would be include within their development.  Some of these landowners even paid a premium to be located close to a park.  None of these property owners will receive a refund of their money if Lot 107 is developed in contravention to their expectations.  These are considerations that obviously were unimportant to TOWNSHIP’s Board of Supervisors.  They cannot, however, be ignored by this Court.

The Doctrine of Equitable Estoppel is a firmly established common law principle.  As Pennsylvania’s highest Court noted in Borough of Downingtown, supra, the DDPA was not intended to supplant or eliminate existing common law principles.  We hold today that the DDPA did not cause the principle of equitable estoppel to evaporate.  We also hold today that the statutory authority contained in the DDPA is not logically or legally inconsistent with the common law principle of equitable estoppel.

Having reached the above conclusions, the next logical step to our analysis requires us to find a way to honor both the DDPA and the common law Doctrine of Equitable Estoppel.  As we see it, the only way to accomplish this goal is to declare that the “public interest” as defined in the DDPA requires that we respect the expectations of numerous individual landowners who purchased property in Wheatland Manor believing that the TOWNSHIP would not sell or develop open space land that had been publicly designated as recreational property.

We are sensitive to the argument that our decision today could be interpreted as prohibiting the sale of property under the DDPA whenever any adjoining landowner objects.  It is not our intent to limit application of the DDPA in such a manner.  In this case, one-hundred sixty-seven (167) residents of Wheatland Manor signed a virtual petition during 2020 that urged TOWNSHIP to maintain Lot 107 as a public park. (See, Exhibit 6).  In addition, a number of landowners purchased their lots believing that they would be living close to a public park.  Moreover, many landowners in Phase 3 of the Wheatland Manor development paid a premium in order to live close to a public park. (See, Exhibit 12).  Of the residents who paid a premium, six (6) took the time to testify in Court that the existence of Lot 107 as a public park was a reason why they purchased their own property.  In the opinion of this Court, the residents of Wheatland Manor who were led to believe that their development would include a public park are “members of the public” whose interest should not be ignored.

We have chosen to define the phrase “public interest” more narrowly than what TOWNSHIP suggests.  Under the unique facts of this case, Lot 107 was designated as a public park because the real estate on which Wheatland Manor is now located was improved into a 450-lot development.  The perceived need for open space park land arose because of the sheer scope of the residential development and because people residing in the development would need recreational space.  In the opinion of this Court, residents of Wheatland Manor are more affected by our decision than residents who may reside ten (10) or more miles away from the Wheatland Manor development.  As such, we have prioritized the “interest” of members of the “public” who reside in Wheatland Manor over the “interest” of those who live much further away from Lot 107.  With this prioritization having been established, we conclude that even under an exclusive DDPA analysis, sale of Lot 107 would not be in the “public interest”.

In the end, we have weighed the TOWNSHIP’s legitimate desire to monetize a parcel of land that is not ideally suited to recreation against the interests of citizens – members of the public – who would suffer harm if Lot 107 is developed in contravention of their expectations.  In part because the TOWNSHIP actively participated in convincing these citizens of Wheatland Manor that Lot 107 would not be privately developed, we conclude that the equities of this dispute weigh in favor of those who object to the sale of what the TOWNSHIP has designated as “Wheatland Woods Park.”[3]  Therefore, that parcel of land should not be sold for private development.  An Order to effectuate this decision will be entered today’s date.

 

 

 

[1] Mr. Lattman was told that the plan showing Lot 107 as a “proposed Park” had been approved by the Township.

[2] In addition,  §§ (d) of § 524 states:

“(d) Representations as to existing restrictions.  Restrictions upon a sale of land that neighboring land is already subject to restrictions as to use may be more  readily made the basis of an estoppel than can statements that such land will later be subjected to restrictions.  The difference is that reliance upon the representation may be more easily justified in the one case than the other.  Where the representation is made that the other land is subject already to a restriction, it may be reasonable for the grantee not to ask for an additional promise to him, while, if the representation is made with respect to restrictions to be placed upon the land in the future, it may be unreasonable for him not to require a promise to that effect to be made to him in enforceable form.  However, circumstances may occur under which reliance upon a representation is reasonable even though the representation is promissory in form.  To the extent to which the reliance is reasonable, the representation may be made the basis of an estoppel.”

 

Effectively, §§ (d) of Restatement of Property § 524 requires a Court to inquire whether it was unreasonable for a landowner to refrain from seeking some sort of enforceable contract.

 

[3] Unlike both Erie Golf Course and Downingtown, the case does not involve a fact pattern where land was dedicated to public use decades ago.  In both Erie Golf Course and Downingtown, the people who originally dedicated land to public use passed away and the facts that gave rise to a proposed change of use evolved over many, many years.  Here, we are analyzing a plot of land that was dedicated for a public park less than twenty (20) years ago and was accepted for public use by the very same people who now wish to engage in a radical change of course.  We are also faced with the landowners who were prompted to purchase their property by representations of these same TOWNSHIP officials.  In the opinion of this Court, some of the equities in play in Erie Golf Course and Downingtown that favored a change in use of the disputed land are not in play in this case.