Gwynedd Properties, Inc. v. Lower Gwynedd Township

DOYLE, Judge. Gwynedd Properties, Inc., (Landowner) appeals two orders of the Court of Common Pleas of Montgomery County; the first order granted Lower Gwynedd Township (Township) a preliminary injunction and the second order denied a motion to dissolve that preliminary injunction. The pertinent facts are as follows. The Landowner owns a seventy-seven acre tract of dense forest and woodland, known as Penllyn Woods, and in 1987 it submitted a proposed subdivision plan which was denied in August 1987 by the Township Board of Supervisors.1 Thereafter, the Township exercised its eminent domain authority under an ordinance enacted pursuant to The Second Class Township Code (Code)2 and condemned Penllyn Woods for park purposes. The Landowner challenged this condemnation in the Court of Common Pleas of Montgomery County which upheld the Township’s taking. The Landowner appealed that decision to this Court which affirmed,3 and then to the Pennsylvania Supreme Court which — 127 — reversed, holding that the Township’s ordinance authorizing this condemnation was void because publication formalities were not followed.4 Title was revested in the Landowner by a court order, and the Landowner then filed another subdivision plan which, again, was denied by the Township. Thereafter, the Landowner began to destroy purposely Penllyn Woods by cutting acres of trees. In September, 1991, the Landowner cut 81 trees totaling 650 caliper inches.5 In October, 1991, the Landowner felled 232 trees totaling 3959 caliper inches; many of the trees cut in October were very old and some of the trees had calipers as large as 44 inches. The Landowner admits in its brief (pages 10-11) that the trees were intentionally destroyed to “discourage the Township’s interest in acquisition of the property by condemnation.” This cutting resulted in extensive damage to Penllyn Woods and damaged the brush and soil of the area. On October 17, 1991, the Township filed an action in equity against the Landowner in order to halt the systematic destruction of Penllyn Woods and also filed a motion for a temporary restraining order. The trial court granted the Township’s motion for the restraining order and directed that the Landowner stop cutting trees and disturbing the soil. Following a hearing on October 22, 1991, the trial court concluded that there was an urgent need to preserve the status quo and stop the irreparable destruction of Penllyn Woods and, accordingly, issued a preliminary injunction continuing the same terms and conditions that were in the restraining order. The Landowner filed a motion to dissolve the preliminary injunction which was denied and this appeal from that order followed. The Township’s request for an injunction averred that the Landowner was attempting to circumvent Sections 1238.15 and 1238.16(h) of the Township’s Subdivision and Land Devel — 128 — opment Ordinance (Ordinance) which regulate the removal and replacement of trees. Section 1238.15 reads as follows: Care shall be taken not to destroy trees unless removal is necessary for the construction of proposed buildings and improvements. Trees which must be shown on the preliminary plan ... shall not be removed or destroyed unless the approved plan indicates the removal of such trees. Section 1238.16(h) states: All subdivisions[6] and land development[7] shall be laid out in such a manner so as to preserve the healthy trees and shrubs on the site. However, each tree having a caliper of six inches or more measured six inches above the ground, if such tree is removed, shall be replaced with a shade tree or shade trees ... which have a total caliper equal to or greater than the tree removed.... This requirement is in addition to any other planting required by these Subdivision Regulations. The Landowner contends that (1) the Township did not present the proof required to support a preliminary injunction, (2) the provisions of the subdivision ordinance on which the preliminary injunction was based are improper and unconstitutional, and (3) the ordinance requiring that a developer replace trees was enacted in violation of numerous public notice and public meeting requirements. A preliminary injunction is a remedy designed to preserve the status quo until the litigation is decided on the merits. Pennsylvania Interscholastic Athletic Association v. Geisinger, 81 Pa.Commonwealth Ct. 421, 474 A.2d 62 (1984). — 129 — The party seeking a preliminary injunction has the burden of establishing a clear right to the relief sought. T.W. Phillips Gas and Oil Co. v. Peoples Natural Gas Co., 89 Pa.Commonwealth Ct. 377, 492 A.2d 776 (1985). The grounds which must be established for granting a preliminary injunction are as follows: (1) there must be a finding of immediate and irreparable harm which cannot be compensated by damages; (2) greater injury would result from refusing the injunction than by granting it; and (3) the injunction must properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct. Leonard v. Thornburgh, 75 Pa.Commonwealth Ct. 553, 463 A.2d 77 (1983). Even more important, however, is a need to establish that the activity sought to be restrained is actionable and that the injunction is reasonably suited to abate such activity. Id. The Landowner first contends that the Township failed to meet its burden of demonstrating a clear right to a preliminary injunction. It argues that, because the subdivision Ordinance relied upon by the trial court and the Township was not violated by the Landowner, there was no basis for granting the injunction. The Township admitted at oral argument that the Landowner has no pending plan for the subdivision or development of Penllyn Woods.8 The language of the Sections 1238.15 and 1238.16(h) of the Ordinance clearly contemplate the existence of a subdivision plan or land development plan; this Ordinance, therefore, is limited to protecting trees on land being subdivided or developed according to a plan. In the absence of a subdivision or land development plan, we must conclude that Sections 1238.15 and 1238.16(h) do not restrict the Landowner’s property right to cut trees on its own land. The Township argues that the Landowner’s destruction of Penllyn Woods constitutes de facto “land development” and, therefore, the Ordinance is applicable. The trial court, however, observed: — 130 — The tree cutting ... did not follow any discemable pattern and was not performed in connection with surveying or preparation of the property for development. One of the explanations ... for this behavior was to reduce the attractiveness of this site, which would discourage the Township from pursuing further eminent domain proceedings. (Emphasis added.) Nothing in the record suggests that the Landowner was performing “land development” within the scope of the Ordinance. Instead, the record demonstrates only that the Landowner engaged in the random cutting of trees to discourage the Township’s interest in the tract for park purposes, an activity not prohibited by the Ordinance. In Cleaver v. Board of Adjustment, 414 Pa. 367, 200 A.2d 408 (1964), our Supreme Court wrote: An owner of property is still entitled in Pennsylvania to certain unalienable constitutional rights of liberty and property. These include a right to use his own home [or property] in any way he desires, provided he does not (1) violate any provision of the Federal or State Constitutions; or (2) create a nuisance; or (3) violate any covenant, restriction or easement; or (4) violate any laws or zoning or police regulations which are constitutional. Id. at 371-72, 200 A.2d at 411 (quoting Lened Homes, Inc. v. Department of Licenses and Inspections), 386 Pa. 50, 54, 123 A.2d 406, 402 (1956). Because the Sections of the Ordinance relied upon by the trial court and the Township are inapplicable and the Township has not asserted any other legal basis for restricting the tree cutting, the Landowner’s systematic destruction of the trees, regardless of how reprehensible this may be, cannot be enjoined. The Landowner has a constitutional right to use his property as he desires, Cleaver, and, since its tree cutting does not violate any laws or regulations, we must hold that the trial court erred in issuing the preliminary injunction. Leonard.9 — 131 — Accordingly, the order of the trial court granting the preliminary injunction is reversed and the case is remanded for a permanent injunction hearing.10 ORDER NOW, August 19, 1992, the order of the Court of Common Pleas of Montgomery County in case no. 2407 C.D. 1991 is reversed and the matter is remanded for further proceedings consistent with this opinion. Case No. 2408 C.D. 1991, is dismissed as moot. Jurisdiction is relinquished. Footnotes [1] This denial is not the subject of this appeal. The Landowner is presently litigating that decision in the Court of Common Pleas of Montgomery County. [2] Act of May 1, 1933. P.L. 103, as amended, 53 P.S. §§ 65101-67201. [3] Gwynedd Properties, Inc. v. Lower Gwynedd Township, 129 Pa.Cmwlth 664, 565 A.2d 868 (1989). [4] Lower Gwynedd Township v. Gwynedd Properties, Inc., 527 Pa. 324, 591 A.2d 285 (1991). [5] The term "caliper inches” means the diameter of the tree as measured in inches. [[6]] 6. The term "subdivision” is defined in Section 1230.03(s) of the Ordinance as "the legal or equitable division of a single lot, tract or parcel of land or a part thereof into two or more lots [[7]] 7. “Land development” is defined in Section 1230.03(f) of the Ordinance as "the improvement of one lot or two or more contiguous lots, tracts or parcels of land for any purpose involving a group of two or more buildings or involving the division or allocation of land ... among two or more existing or prospective occupants by means of, or for the purpose of, streets, common areas, lease-holds, condominiums, building groups or other features.” [8] Section 1234.01 of the Ordinance requires a preliminary plan and a final plan, approved by the Board of Supervisors, for all subdivisions • and land developments within the Township. [9] Because we hold that the trial court erred in granting the preliminary injunction, Landowner's appeal of the trial court's order denying the motion to dissolve the preliminary injunction is rendered moot. [10] Because of our disposition in this case, we need not reach Landowner's remaining issues.