IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA CIVIL DIVISION CITIZENS TO KEEP RADNOR PARKS PUBLIC & ALBERT

B. MURPHY, III & HEATHER MURPHY & DAVID M. HUMPHREY & GAYLA MCCLUSKEY & THOMAS RALPH NO: 11-5331

v.
TOWNSHIP OF RADNOR, & RADNOR TOWNSHIP BOARD OF COMMISSIONERS & AGNES IRWIN SCHOOL OPINION KENNEY,

J.
before this common

FEBRUARY

c.A 7

J

2012

Presently

pleas court is a petition to preliminarily

enjoin the

Township of Radnor, the Radnor Township Board of Commissioners, School from constructing

and the Agnes Irwin

an artlflclal-turf athletic field at the Radnor Memorial Park in Radnor Because Petitioners, Citizens to Keep Radnor Parks Public, are

Township, Delaware County.

not likely to succeed on the merits of the underlying action, as will be discussed below, this Court must deny the Petition. FACTUAL BACKGROUND In 1993, Morgan's Run Corporation, a subsidiary of the Sun Company, dedicated as

public parkland two separate parcels of real estate located in Radnor Township, Delaware County to the Township of Radnor. At the time of the dedication, the two parcels were known as the "Township pad Parcel" Radnor Satellite Parking Parcel" (consisting of approximately ("RCA")
1

of approximately In August, School

4.8 acres) and the

(consisting

2.8 acres). and the

1999, Radnor Township, District entered into a

Center

Associates Covenants,

Radnor

comprehensive
1

Restrictions and Easements Agreement

(hereinafter

"Covenants

RCA is Morgan's Run Corporation's successor-in-interest.

1

Agreement") whereby the two separate parcels of real estate were consolidated to form Radnor Memorial Park. The Covenants Agreement indicated, inter alia, that the parkland was limited to use in perpetuity as: public parklands and public open space, and no artificial structure shall be built or placed inconsistent with this use on the Township Satellite Parking Parcel or Hell-Pad parcel; provided, however, that the Township, its successors and assigns, may construct upon such parcels paved parking areas, access drives, sports fields, restrooms, water fountains, facilities for maintenance and park equipment, related park amenities and the southern terminus of the pedestrian bridge. Covenants Agreement, 8/16/1999, at 6. Thereafter, Radnor Memorial Park, consisting of an all-

purpose field, a walking path, wooded open space with park benches, together with a parking area, restrooms and a water fountain, remained accessible to all residents of the township for active and passive recreational use from dawn until dusk, 365 days per year, except when the fields were in use. In the last several years, representatives of the Agnes Irwin School (hereinafter "AIS"), private, all-qirls, elementary and secondary school located in Radnor Township, approached representatives of Radnor Township about utilizing the Park as a principal athletic field for AIS.

The proposal included a plan to turn the existing athletic field into an artiflclal-turf athletic field at AIS's expense. Following negotiations regarding the terms of the proposal, a lease agreement The terms of the agreement indicated, inter alia, that AIS would

was executed in June, 2011.

lease the Park for 15 years, with AIS having the option to extend the Lease for five additional one year periods. AIS would pay the Township a yearly rental fee of $35,000, would convert the existing all-purpose field into an artificial-turf field and would be responsible for maintaining the field, the surrounding walking track and the management and disposal of any refuse resulting from AIS's use of the facility. See Lease Agreement, 6/28/2011, certain periods of exclusive games. use of the proposed athletic The Lease further granted AIS field for both practices and

interscholastic

The schedule, which was to be reestablished

on an annual basis,

allowed AIS exclusive use of the artificial turf field:

2

a.

during the academic year, from Monday through Friday, from 3:00 p.m. to 6:00 p.m., with the 6:00 p.m. termination to be extended for games in progress until completion; during the academic year, 12 times, in the evening from Monday through Friday from 6:00 p.m. to 9:00 p.m.; during the academic school year, 4 Saturdays for scheduled games from 9:00 a.m. to 5:00 p.m.: Prior to the start of the academic year for pre-season practice for three weeks in August from 9:00 a.m. to 5:00 p.rn.: and During the summer months when school is not in session for joint sports and recreation camps with Radnor Township, for six weeks from 9:00 a.m. to 5:00 p.m. for sports and recreation camps, to be jointly determined by AIS and the Township. at 4. The total amount of daylight hours exclusively allocated to See Answer, 11/16/2011, at

b. c. d. e.

Lease Agreement, 6/28/2011,

AIS was determined to be approximately 22%.

11 36.

The Lease

also indicated that "the artificial turf field shall be open and accessible for general use by Radnor Township residents when not being used by AIS sponsored programs or Township

sponsored programs, and the general public shall have access to the walking track and other amenities at all times, even during active field use by AIS or Radnor." Lease Agreement, . voted to adopt the

6/28/2CXD'h, auBe 20, 2011, Radnor Township's
Lease as Ordinance No. 2011-16. unincorporated association

Board of Commissioners

On July 15,2011, Citizens to Keep Radnor Parks Public, an

of residents of the Township of Radnor, filed a Complaint in the

Court of Common Pleas of Delaware County against Radnor Township, the Radnor Township Board of Commissioners and the Agnes Irwin School. The Complaint alleged that: (1) the

Lease between Radnor Township and AIS constitutes a violation of the Public Trust Doctrine and the Use Restrictions as set forth in the Covenants Agreement; (2) the Lease constitutes a violation of the building restrictions; and (3) the Lease violates the Township Zoning Ordinance." See Complaint, 7/15/2011, at 8-10.

2The third Count of the Complaint alleges that the provisions of the lease relating to construction of "grandstands" and "field illumination" violates the Township's Zoning Ordinance. However, the Pennsylvania Municipalities Planning Code provides the exclusive means for contesting zoning interpretations and requires that such matters be brought before the Township Zoning

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In [ate January, 2012, construction of the artificial-turf field commenced with the removal of topsoil for the installation of a storm water management system. erected to prevent access to the construction site. A safety fence was also

On February 10, 2012, Plaintiffs filed a

Petition with this Court requesting that Defendants be preliminarily enjoined from engaging in any further construction activities and be forced to remove the fencing that had been erected. On February 13, 2012 and February 21, 2012, hearings on the Petition were held before this Court. This Opinion and Order follows. DISCUSSION

I.

PRELIMINARY

INJUNCTION

STANDARD

The standard applied by the trial courts when reviewing a request for a preliminary injunction is well settled. A Preliminary Injunction may only be granted when the moving party sufficiently establishes the following six elements: (1) that relief is necessary to prevent immediate and irreparable cannot be compensated by damages; harm which

(2) that greater injury will occur from refusing the injunction than from granting it; {3} that the injunction will restore the parties to the status quo as it existed immediately before the alleged wrongful conduct; (4) that the alleged wrong is manifest, and the injunction is reasonably suited to abate it; (5) that the petitioners are likely to prevail on the merits of the action; and (6) the preliminary injunction will not adversely affect the public interest. Dragani v. Borough of Ambler, m A.3d _m, 2012 WL 360547, * 6 (Pa. Cmwlth. 2012); Hatfield Twp. v. Lexon Ins. Co .. 15 A.3d 547, 558 (Pa. Cmwlth. 2011). In ruling upon a preliminary

injunction, a trial court has reasonable grounds for its denial of relief where it finds that anyone

Hearing Board. See 53 P.S. 101, et seq. Therefore, Count III of the Complaint should properly be before the Radnor Township Zoning Hearing Board, not the Court of Common Pleas at this stage in the litigation. See 53 P.S. 101, et seq; see also 42 Pa.C.S.A. § 7541 (c)(2) (declaratory judgment relief is not available in proceedings within exclusive jurisdiction of a tribunal other than a court).

4

of the aforementioned

essential

prerequisites

for a preliminary

injunction

is not satisfied.

Dragani, 2012 WL 360547, at * 6.

"For a preliminary injunction to issue, every one of the [ ]

prerequisites must be established; if the petitioner fails to establish anyone of them, there is no need to address the others." Eckman v. Erie Ins. Exchange, 21 A.3d 1203, 1207 (Pa. Super. 2011 ). Here, upon consideration of the Petition, the briefs filed by the parties and the arguments held on February 13, 2012 and February 21, 2012, this Court determined that Petitioners are not likely to prevail on the merits of this action and, therefore, cannot satisfy the fifth element of the preliminary injunction standard. Eckman, 21 A.3d at 1207. Thus, this Court will only address that factor below. See

II.

PETITIONERS

ARE NOT LIKELY TO SUCCEED ON THE MERITS OF THIS ACTION.

Under the common accepted

law public trust doctrine, when land has been dedicated public park, a political subdivision

and is

for public use, thus becoming a dedicated

estopped from interfering with or revoking the grant, at least so long as the land continues to be used, in good faith, for the purpose for which it was originally dedicated. Trustees of the Phila.

Museums v. Trustees of the Univ. of Pa., 96 A. 123, 125 (Pa. 1915); City of Easton v. Koch, 31 A.2d 747, 752 (Pa. Super. 1943). In 1959, the Pennsylvania legislature codified the public trust doctrine by adopting the Donated or Dedicated Property Act ("DOPA"). trust doctrine, the DOPA requires that "[a]1I such lands and buildings Similar to the public held by a political

subdivision, as trustee, shall be used for the purpose or purposes for which they were originally dedicated or donated .... " 53 P.S. 3383. In addition to setting forth the duties of the political

subdivisions as trustees of dedicated parklands, the DOPA also provided a basis and procedure by which a political subdivision P.S. could obtain relief from its obligations under the act. See 53

§§ 3381-3383. Specifically, Section 4 of the DOPA allows a political subdivision to apply to
of the original use of the

the orphans' court for relief when it believes that the continuation

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particular property held in trust is no longer practicable or possible and has ceased to serve the public interest. See 53 P.S. § 3384. In the present case, the distinction between the common law public trust doctrine and the DOPA is not of consequence as both doctrines require the political subdivision to maintain the use of the dedicated parkland for the purpose for which it was originally dedicated. While

Radnor Township has stated that the existing field is in poor condition and, as a result, various township sponsored groups have refused to use the field for athletic events, the Township does not allege that Radnor Memorial Park's original use is no longer practicable or possible, nor has it applied to the courts for relief of its duties as trustee. Instead, Radnor Township takes the

position that the construction of the artificial field and the lease of the field to AIS is not a change in use and is consistent with the dedication agreement and with their duties both under the DOPA and the public trust doctrine. This Court agrees.

A. The proposed construction is not prohibited under the public trust doctrine, the DOPA or the Dedication Agreement.
In determining what uses and improvements are consistent with a public park dedication, the Pennsylvania Supreme Court has indicated that the terms of the dedication are critical to the Court's legal analysis. Bernstein v. Pittsburgh, 77 A2d 452 (Pa. 1951). "Where land is

conveyed by the owner to a municipality for park purposes ...

the terms of the grant must be restricted."

narrowly construed and the uses to which the land may be put correspondingly at 455. In Bernstein v. Pittsburgh, the issue before the Pennsylvania

19..:.

Supreme

Court was

whether construction of an open-air auditorium and its subsequent 10-year lease to the Civic Light Opera Association of Greater Pittsburgh for use from June 1 to September 15, was

consistent with a public park dedication. to the City of Pittsburgh for:

The specific dedication at issue conveyed the property

the use of the people of Pittsburgh and the Public as a Public Park and for the use and purpose of establishing on said grounds a Public Park and place of free,

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attractive and healthful resort, and open air recreation for the people of Pittsburgh and the Public and perpetually keeping and maintaining the same for such uses and purposes and for no other use or purpose whatever. Bernstein, 77 A.2d at 454. "well-within ... In determining that the construction of the open-air auditorium was

and was no way inconsistent with the purposes specified in the deed," the

Pennsylvania Supreme Court stated that: While the entire park acreage or any substantial part of it cannot, of course, be built upon as unduly to destroy the enjoyment of fresh air, sunshine and exercise, the erection within its borders of monuments, museums, art galleries, public libraries, zoological and botanical gardens, conservatories, and the like is commonly recognized and accepted as being within the normal scope and ambit of public park purposes, and an open-air public auditorium comes within the same category as such other permissible structures. ~ at 455; see also In re Condemnation of Lands of Laughlin, 814 A.2d 872, 876 (Pa.

Cmwlth. 2003). In the present case, there is no dispute that the use of Radnor Memorial Park is limited to that of a public park. Radnor Township accepted dedication of the real property as restricted public parkland, first in the deed from Morgan's Run Corporation and then with the restrictions as stated in the 1999 Covenants Agreement. The Covenants Agreement specifically

contemplates the construction of an athletic field on the property and related amenities, stating: "[t]he Township, its successors and assigns, may construct upon such parcels paved parking areas, access drives, sports fields, restrooms, water fountains, facilities for maintenance and park equipment, [and] related park amenities ....
II

Covenants Agreement, 8/16/1999, artificial-turf

at 6 {emphasis added}.

Additionally, the construction of an by the

athletic field fits well within the scope of a public park as described See Bernstein, 77 A.2d at 455.

Pennsylvania Supreme Court.

Further, similar to the public's

use of the auditorium contemplated

in Bernstein, those living in Radnor Township have the

opportunity to watch and enjoy the interscholastic matches and also have the right to use the field when it is not in active use. Thus, because the proposed construction of an artificial-turf athletic field at the Radnor Memorial Park is consistent with the Dedication AgreemenC the public trust doctrine and the

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DOPA, this Court's analysis must turn to whether Radnor Township's lease of the field to AIS, a private entity, is prohibited.

B. The Lease of the artificial-turf field to AIS is not prohibited under the public trust doctrine, the DOPA or the Dedication Agreement.
In the present case, Petitioners take the position that because AIS will have exclusive use of the proposed artlflcial-turt field for approximately 22% of the daylight hours and because AIS is a private organization, the use is not public and, therefore, the Lease is inconsistent with the terms of the dedication. Preliminary Objections, at 8. In Pennsylvania, the lease of dedicated public parkland to a private organization is not inconsistent with the Public Trust Doctrine and the DDPA so long as the use of the parklands under the lease will be a public one. See~, Bernstein, supra (holding that construction of an See Plaintiffs' Brief Contra to Defendant, Township of Radnor's

open-air auditorium on public parkland and subsequent 10 year lease to the Civic Light Opera
Association was proper). It has long been held under Pennsylvania law that "[iJt is not essential that the entire community participate or even any considerable portion of it should directly enjoy or See Shields v.

in an improvement

in order to make its use a public one."

Philadelphia, 176 A.2d 697, 698 (Pa. 1962); A & L Investments v. Zoning Hearing Board of City of McKeesport, 829 A.2d 775, 778-779 (Pa. Cmwlth. 2003); In re Saha, 822 A.2d 846 (Pa.

Cmwlth. 2003); In re Condemnation by City of Coatesville, 898 A.2d 1186 (Pa. Cmwlth. 2006). Specifically, in the matter of Shields v. Philadelphia, the Pennsylvania Supreme Court

addressed the proposed construction of a Little League Baseball field on a portion of dedicated public parkland in the City of Philadelphia. The property at issue was dedicated as public

parkland "on condition that no buildings shall be erected thereon other than those required for the comfort of the people, and also that the garden and trees shall be preserved as far as possible.
JJ.

JsL.

at 698.

In holding that the construction

of the fields for use by Little League

Baseball, a non-profit organization requiring membership for participation, did not violate the

8

dedication agreement, the Pennsylvania Supreme Court stated that "[t]he fact that the proposed improvements will primarily benefit Little League baseball does not detract from the public It is not essential that the entire community, or even any considerable

nature of the use. . ..

portion of it, should directly enjoy or participate in an improvement in order to make it a public one." Shields, 176 A.2d at 698 (citing Dornan v. Philadelphia Housing Authority, 200 A. 834

(Pa. 1938». Pennsylvania case law is rich with other examples of uses 'held to be public in which not

every member of the public may participate, or even benefit directly. Accord: Jacobs v.
Clearview Water Supply Co., 69 A. 870 (Pa. 1908) (general public would benefit from eminent domain taking for private commercial and manufacturing purposes); Dornan v. Philadelphia

Housing Authority, 200 A. 834 (Pa. 1938) (the fact that only part of the community could occupy proposed low income properties would not prevent such use from being a public use where indirect public benefit exists); Borough of Big Run (condemnation

v. Shaw, 330 A.2d 315 (Pa. Cmwlth. 1975)

was not without public benefit even though proposed road would serve only

limited number of properties); A & L Investments, 829 A.2d at 778-779 (therapy and educational classes were public use although facilities were not open to all members of public). In the present case, the fact that the improvements to Radnor Memorial Park may institution, does not

partially, or even primarily, benefit AIS, a private, non-profit educational detract from the public nature of the use. See Shields, supra.

The public has the opportunity to

use the field for approximately 78% of the daylight hours and also has the opportunity to watch and enjoy the athletic competitions that will take place on the field. Additionally, even while the field is in use, the public can still utilize the remaining portions of the 7+ acre park, including the walking trails, wooded open spaces and park benches. places particularly well-suited to recreational "Parks [are} commonly recognized as of every sort and [

and athletic endeavors

I,

because much of this park [ ] remain[s] untouched, the proposed use [is] not inconsistent with the terms of the original grant." Shields, 176 A.2d at 698.

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Further, our conclusion that AIS's proposed use is a public use is buttressed by the unquestionable public benefit derived therefrom, notwithstanding the public's semi-limited and

conditional direct participation therein.

Radnor Township will receive the benefit of $35,000 in

yearly rental fees and relief from the cost and time associated with maintaining the athletic field and walking trail. Radnor Township will also gain the use of the new facility during the hours it is not being used by AIS and will benefit from the ability to rotate the use of and resulting wear to the existing athletic fields in the Township, among many other benefits. CONCLUSION Because Petitioners have failed to establish their likelihood of success on the merits of this case, this Court must deny the petition for preliminary injunction. Exchange, 21 A.3d 1203, 1207 (Pa. Super. 2011). See Eckman v. Erie Ins.

\E COURT:

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