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CITIZENS TO KEEP RADNOR PARK PUBLIC v. RADNOR TOWNSHIP BOARD OF COMMISSIONERS
Citizens to Keep Radnor Park Public and Albert B. Murphy, III and Heather Murphy and David M. Humphrey and Gayla McClusky and Ralph Thomas, Appellants,
v.
Radnor Township Board of Commissioners and the Agnes Irwin School.
No. 412 C.D. 2012.
Commonwealth Court of Pennsylvania.
Argued: October 15, 2012.
Filed: January 11, 2013.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge.
OPINION NOT REPORTEDMEMORANDUM OPINION BY JUDGE LEAVITT. Citizens to Keep Radnor Park Public (Citizens) appeal an order of the Court of Common Pleas of Delaware County (trial court) denying their petition to preliminarily enjoin Agnes Irwin School from constructing an athletic field on public park land leased from Radnor Township. Discerning no error by the trial court, we affirm. In 1993, Morgan's Run Corporation dedicated two parcels of real estate in the Township as a public park. The two parcels were known as the "Township Satellite Parking Parcel" (4.8 acres) and the "Heli-pad Parcel" (2.8 acres). In August 1999, Radnor Township, the Radnor School District and Radnor Center Associates1 entered into a comprehensive Covenants, Restrictions and Easements Agreement consolidating the two parcels to form Radnor Memorial Park. The Covenants Agreement stated: Restrictions on Use of [Radnor Memorial Park]. Township hereby covenants and declares that the two Township-owned parcels of real property [forming Radnor Memorial Park] shall always be used for public park lands and public open space, and no artificial structure shall be built or placed inconsistent with this use on the [parcels]; provided, however that Township, its successors and assigns, may construct upon such parcels paved parking areas (including but not limited to the Township Satellite Parking Lot), access drives, sports fields, restrooms, water fountains, facilities for maintenance and park equipment, related park amenities, and the southern terminus of the Pedestrian Bridge. Reproduced Record at 53a (R.R. __) (emphasis added). Radnor Memorial Park consists of an all-purpose field, a walking path, wooded open space with park benches, a parking area, restrooms and a water fountain. Since its dedication it has remained accessible to all residents of the Township for active and passive recreational use from dawn to dusk, 365 days per year, except when the all-purpose field is in use.
1. Radnor Center Associates is the successor to Morgan's Run Corporation.
2. Our Supreme Court has summarized the scope and standard of review as follows:
[O]n an appeal from the grant or denial of a preliminary injunction, we do not inquire into the merits of the controversy, but only examine the record to determine if there were any apparently reasonable grounds for the action of the court below. Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was palpably erroneous or misapplied will we interfere with the decision of the trial court. * * * Thus, in general, appellate inquiry is limited to a determination of whether an examination of the record reveals that any apparently reasonable grounds support the trial court's disposition of the preliminary injunction request.
Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 573 Pa. 637, 645-46, 828 A.2d 995, 1000-01 (2003) (internal quotations and citations omitted).
3. In ruling on a preliminary injunction request, a trial court has apparently reasonable grounds for its denial of relief where it properly finds that any one of the following essential prerequisites for a preliminary injunction is not satisfied:
(1) An injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages.
(2) Greater injury will result from refusing an injunction than from granting it, and, concomitantly, issuance of an injunction will not substantially harm other interested parties in the proceedings.
(3) An injunction will restore the parties to their status as it existed immediately prior to the alleged wrongful conduct.
(4) The activity to be restrained is actionable, the moving party's right to relief is clear, and the wrong is manifest. In other words, the moving party must show that it is likely to prevail on the merits.
(5) The injunction is reasonably suited to abate the offending activity.
(6) The injunction will not adversely affect the public interest.
Summit Towne Centre, 573 Pa. at 646-47, 828 A.2d at 1001 (emphasis added).
4. Township resident and amicus curiae James D. Schneller has filed a brief, pro se, in support of Citizens' appeal.
5. In response to the dissenting opinion, we note that the trial court reasonably interpreted the language of the Covenants Agreement, which expressly provides that the Township, or its "successors and assigns, may construct ... sports fields [and] related park amenities ...." R.R. 53a. Consistent with this language, the Township's assignee, Agnes Irwin, will convert the existing all-purpose field into an artificial turf field. Further, under the Lease Agnes Irwin has exclusive use of only a portion of the park, i.e., the athletic field, for 22% of the daylight hours in a year. The public has access to the field the other 78% of those hours, and access to the remainder of the park, including the track, wooded and open areas, walking path, benches, restrooms and other amenities, 100% of the time. The dissent's so-called "micro level" observation that children will be denied access to the athletic field during the only "practical time" is based upon assumptions not supported by the record about when children eat dinner or do their homework. It assumes, without evidence, that children attending other schools will not use the athletic field for gym class or recess during the school day, i.e., before 3:00 p.m. The dissent's "macro level" parade of horribles, i.e., that the demise of public parks is imminent, is similarly speculative. Accepting the dissent's invitation to imagine worst case scenarios, one can conjure up images of once idyllic public parks lying fallow due to lack of funding for maintenance in strained municipal budgets. Indeed, in the case sub judice, the existing all-purpose field had fallen into a state of disrepair and, but for the Lease with Agnes Irwin, may have eventually become unusable by anyone.
In summary, given this Court's deferential standard of review of an order denying preliminary injunctive relief, there were "apparently reasonable grounds" for the trial court to conclude that the Lease did not violate the Donated or Dedicated Property Act or the Covenants Agreement. The mere possibility that Citizens may prevail in their declaratory judgment action does not require the issuance of a preliminary injunction.
1. Act of December 15, 1959, P.L. 1772, 53 P.S. §§3381-3386.
2. Radnor Center Associates (RCA), a limited partnership, the Township, and the Radnor Township School District (School District) executed the Covenants Agreement in January 2000 to set forth their agreements regarding the development of Radnor Elementary School on two tracts of land owned by the Township and the School District that adjoined a business park owned by RCA. (R.R. at 48a.) The Covenants Agreement states a number of restrictions regarding the use of these school tracts in favor of RCA and the Township, and RCA granted the School District an easement over a road for ingress and egress to the school tracts. (Id. at 49a-51a, 53a-57a.) The Covenants Agreement also provided for improvements to Environmental Park in the Township, the establishment of the Park, as well as the construction of a pedestrian bridge from the school tracts to the Park. (Id. at 51a-53a.)
3. See, e.g., San Vincente Nursery School v. County of Los Angeles, 174 Cal.App.2d 79, 87, 304 P.2d 837, 842 (1956) (holding that a private nonsectarian nursery school's exclusive use of a "card shelter" and "horseshoe area" of a public park from 9:00 a.m. to noon on weekdays, and for storage when not in use, for seven years, was not a public use or for a public purpose because "[t]he use of the park by the school did not contribute to the enjoyment of the park by the general public but contributed only to the enjoyment of the park by the few children and their parents....").
4. The majority says that it is mere speculation on my part that children use the ball field when they come home from school and after dinner during the school year, seemingly suggesting that the children can either play hooky from school or go to the Park after dinner when it is too dark to play ball. As to the speculation of my "parade of horribles," those are listed because it illustrates the effect the majority holding has on parks across the Commonwealth. There are always expedient reasons to rent out, as here, or sell public parks — expensive to maintain or needed by adjacent entities to expand to foster job growth. However, expedient reasons are not sufficient to allow the sale because they are held in trust for the public. Otherwise, the General Assembly would not have enacted DDPA, which forbids mere expediency or present day "practical" reasons that the majority suggests justifies a private party to have exclusive use of part of a park forever or, as here, for 15 years. It is noteworthy that Radnor Township is the home of two universities, two colleges, a number of private schools and a hospital. Under the majority rationale, any one of those institutions can have exclusive use of a portion of a township park to the exclusion of the public if it pays for improvements, e.g., if one of those institutions needs parking during the day for employees, as long as they paid for it, it would justify paving over part of the park for a parking lot. Specifically, there is no support for the proposition, as the majority seems to infer, that the DDPA and the Public Trust doctrine can be violated to allow the Park to be used for a private purpose to make money to defray expenses. If that were so, those doctrines would be meaningless. Moreover, there is no allegation that Radnor Township is unable to provide funding to adequately maintain the Park.
5. The cases cited by the trial court to support the order denying preliminary injunctive relief are inapposite. Shields v. City of Philadelphia, 405 Pa. 600, 176 A.2d 697 (1962), involved the question of whether the construction of a baseball field for the primary benefit of the non-profit Little League and its participants was consistent with property dedicated to be used as "[a] public park, 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...." While the ball field was being used by the Little League, the Little League itself was open to all. Likewise, Bernstein v. City of Pittsburgh, 366 Pa. 200, 77 A.2d 452 (1951), involved the question of whether the construction of an open air auditorium to be used by the non-profit Civic Light Opera to present musical and theatrical performances for a fee was consistent with property dedicated to be used as "[a] Public Park and place of fee, attractive and healthful resort, and open air recreation for the people of Pittsburgh and the Public...." The ten-year lease at issue in that case only provided the Civic Light Opera with use of the open air auditorium in the public park, but again, the event would be open to the general public for a fee. In re Condemnation by City of Coatesville, 898 A.2d 1186 (Pa. Cmwlth. 2006), appeal denied, 591 Pa. 718, 919 A.2d 959 (2007) and In re Saha, 822 A.2d 846 (Pa. Cmwlth.), appeal denied, 576 Pa. 715, 839 A.2d 353 (2003) are also inapposite because they involved the condemnation of land for the construction of a municipal golf course that would be open for use by the general public.
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