The Commonwealth Court has ruled that a county land preservation board’s decision not to take enforcement action over an alleged conservation easement violation is not appealable to a trial court.
The court further ruled that third parties lack standing to bring easement enforcement actions.
In a published March 2 decision in Schwartz v. Chester County Agricultural Land Preservation Board, a three-judge panel of the court unanimously reversed a trial judge’s ruling denying the board’s motion to dismiss plaintiff Sally Schwartz’s petition for review of a letter the board sent declining to take enforcement action against a local composting company.
The panel ruled that, under the Agricultural Area Security Law, enforcement decisions by the county board and the state Agricultural Land Preservation Board constitute exercises of prosecutorial discretion, rather than adjudications that could be appealed to a trial court.
“Appellant has not identified a statute that creates a process for complaints to be filed with the board or that otherwise imbues the board with quasi-judicial functions,” Senior Judge James Gardner Colins wrote for the panel, which also included Judges Renee Cohn Jubelirer and Robert Simpson. “Instead, the AASL places both the county board and the state board in a prosecutorial role, requiring them to inspect the eased land annually or if there is reasonable cause to believe that a provision of the easement is being violated, and to notify the owner by certified mail if a violation is found. The AASL does not create a forum where a landowner or other party has an opportunity to be heard concerning either allegations of a violation or violations found by the board following inspection.”
Schwartz had filed a “‘formal complaint’” with the county board alleging composting company Arborganic Acres was operating an industrial waste collection and processing facility on a local property in violation of a conservation easement, according to Colins’ opinion. Arborganic uses a portion of the North Coventry Township property to mix and process organic mulch.
The board visited the property to inspect it and held a public hearing for citizens to voice any concerns about the facility but eventually issued a letter to Schwartz and her counsel in May 2016 stating that “‘the operations taking place upon the [property] appear to be consistent with the terms of the [easement] in place.’”
Schwartz filed a petition for review to the Chester County Court of Common Pleas, which ultimately ruled against Schwartz on the merits but declined to address the board’s argument that the appeal should have been dismissed for procedural reasons.
But Colins agreed with the board that the trial court never should have reached the merits of the case, rejecting Schwartz’s argument that she had standing to file the petition because the board’s May 2016 letter constituted an adjudication appealable under the Local Agency Law.
Like the AASL, Colins said, the Department of Agriculture Regulations in the Pennsylvania Code imbue the county and state boards with prosecutorial powers but reserve the judicial function for the court of common pleas in the county in which the eased land is located.
“Appellant argues that following her ‘formal complaint,’ the board established a procedure that included inspecting the property, issuing a letter to Arborganic that reflected the results of the inspection, appointing counsel, conducting a hearing at which evidence and argument was heard, and then issuing its May 25,  letter to appellant as a final action,” Colins said. “However, appellant’s narrative merely reconstructs the extent to which she attempted to dragoon the board into exercising powers that the General Assembly has not granted it.”
Counsel for Schwartz, Jonathan E. Rinde of Manko, Gold, Katcher & Fox in Bala Cynwyd, could not be reached for comment.
Counsel for the county board, Amanda Joy Sundquist of Unruh, Turner, Burke & Frees in West Chester, also could not be reached.