White v. Township of Upper St. Clair, Pa. Cmwlth., 799 A.2d 188 (Pa. Cmwlth. 2002)
White v. Township of Upper St. Clair, No. 886 C.D. 2008, 2009 Pa. Commw. LEXIS 78 (Pa. Commw. March 3, 2009).
Waiver and laches do not serve as a defense to a citizen’s action challenging a zoning amendment to permit a communications tower on public property where the municipality failed to provide sufficient information to put citizens on notice of the project.
Cross Reference – MPC Section 107; Donated or Dedicated Property Act; PA Constitution, Article 1, Section 27.
In this case township residents brought suit seeking declaratory and injunctive relief to challenge the construction of a communications tower in a township park. The park was created by a deed dedicating the park to the township for the limited use of recreation, conservation and historic purposes. The township entered into a 100 year lease with a communications company for .428 acres of the 200 acre park. The lower court dismissed the residents’ complaint finding that the residents lacked standing to enforce the terms of the deed of dedication. The court determined that the township had no duty to apply to the orphans’ court for permission to use the property for a different public purpose, pursuant to the Donated or Dedicated Property Act. The lower court also found that the lease did not create a subdivision of the 200 acres.
The Commonwealth Court reversed the trial court decision in part and affirmed in part as follows:
The Court held that residents’ interests as taxpayers and residents of the township were substantial, direct and immediate to pursue the claim that the township failed to uphold the terms of the dedication of the Park. The residents; interests are protected by the Pennsylvania Constitution, Article I, Section 27 which provides that people have a right to the preservation of the natural, scenic, historic and esthetic values of the environment.
DONATED OR DEDICATED PROPERTY ACT
The Court held that a private right of action exists under the Donated or Dedicated Property Act, 53 P.S. 3381, et seq. to enforce the restriction to use the donated lands for the purposes for which they were originally donated.
SUBDIVSION AND DEVELOPMENT
The Court held that a lease which conveys a use of a discrete parcel of land from the township to a third party is an action creating a subdivision within the meaning of Section 107 of the MPC and required the township to filed a subdivision and development plan pursuant to the municipality’s ordinances.
In 2009, the Township of Upper St. Clair entered into an agreement with a communications company whereby the Township agreed to lease a half acre of property in a Township owned park for construction of a communications tower. Under the terms of the agreement, the company would provide the Township with emergency communications services and pay rent for a period of 25 years, but the company was permitted to erect a 350 feet high tower and three adjoining buildings surrounded by an 8 feet high, barbed wire fence for its communications services. The Township passed zoning amendments which exempted the Township and the company from all provisions of the Township’s Zoning Ordinance. Although the Township advertised the zoning amendment, the advertisement provided no details of the purpose for the amendment or the planned construction. Further, all negotiations over the lease were conducted in closed, executive sessions. After construction began, a Township resident became aware of the project, wrote a letter to the Supervisors and attended meetings objecting. The citizen filed a lawsuit within 40 days of learning of the project, but the construction was complete by the time the action was filed. The Trial Court dismissed the Complaint based on its finding that the citizen unreasonably delayed in bringing the action and the Township and communications company were prejudiced as a result. The citizen appealed.
The Commonwealth Court explained that the action would be barred under the doctrine of laches (sleeping on your rights) if there was evidence of delay arising from the citizen’s failure to exercise due diligence and resulting prejudice to the Township. In determining whether the citizen failed to exercise due diligence, the Court had to determine when the Plaintiff knew, or by use of information within his reach, should have known about the project. After reviewing the evidence, the Court determined that based on the Township’s failure to provide full and accurate information concerning the purpose and effect of the zoning amendments in the advertisements or during public meetings, the citizen could not have known before he actually learned – on October 2, 1996 – of the scope and nature of the work. He filed the lawsuit on November 14. The Court determined that by taking action within 40 days, despite the fact that construction was complete by the time the suit was filed, the Plaintiff did not fail to exercise due diligence, rendering the doctrine of laches inapplicable as a defense to the lawsuit. As a result, the Court remanded the case for consideration of whether the Township violated the deed restrictions, the Donated or Dedicated Property Act, the Ordinance or the Township’s Home Rule Charter in amending the zoning and allowing use of property for other than recreation.
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