            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Amos S. Lapp and Emma S. Lapp,         :
                                       :
                        Appellants     :
                                       :
                  v.                   :      No. 1845 C.D. 2016
                                       :      ARGUED: June 5, 2017
Lancaster County Agricultural Preserve :
Board                                  :


BEFORE: HONORABLE ROBERT SIMPSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                     FILED: July 31, 2017


             Amos S. Lapp and Emma S. Lapp (the Lapps) appeal from an order of the
Court of Common Pleas of Lancaster County (common pleas) granting a petition to
quash their appeal as untimely filed. The Lancaster County Agricultural Preserve
Board (Board) filed the petition in response to the Lapps’ latest request to subdivide
farmland that is subject to an agricultural land preservation easement that the prior land
owners (the Harnishes) granted and the Board accepted and approved in February
1985. We affirm.
             By way of background, the property at issue is located at 430
Baumgartner Road in Pequea Township, Lancaster County. The Harnishes preserved
approximately ninety-four acres of the farm via a Lancaster County Pennsylvania
Agricultural Land Preservation Grant of Easement as recorded in the Lancaster County
Recorder of Deeds Office (1985 easement). Lapps’ November 22, 2013, Notice of
Appeal, Exhibit B (1985 easement); Reproduced Record (R.R.) at 22-29a. Pursuant to
the deed restrictions in the 1985 easement, the permitted use of the land is restricted to
agricultural uses and directly associated uses “defined as customary, supportive and
agriculturally compatible uses of farm properties in Lancaster County . . . .” Id. at 23a.
The only reference to a potentially permissible subdivision in the 1985 easement is for
residences, and the applicable section provides:

             3. Residences permitted on the land subject to these
             restrictions are only those pre-existing dwellings, the
             replacement of pre-existing dwellings, and an additional
             dwelling or dwellings intended for use and occupancy by a
             person who or a family, at least one member of which, earns
             a substantial part of his or her livelihood from the farm
             operation, or is a parent or child of the operator of the farm.
             Such permitted dwellings may be constructed either on the
             original parcel or on lots subdivided from the original parcel
             at a density not to exceed 1 dwelling per 25 acres of the
             original parcel. Minor exceptions may be considered and are
             subject to approval by the GRANTEE in the event that these
             restrictions conflict with State or local requirements. Other
             residential subdivision and uses are prohibited.

Id. at 24a (emphasis added).
             Pursuant to an April 1996 recorded deed, the Lapps purchased the
farmland from the Harnishes. The deed’s subdivision provision provides as follows:
             The subject land may be subdivided if subdividing will not
             harm the economic viability of the subject land for
             agricultural production. If the subject land is subdivided, the
             Deeds to all of the subdivided parcels shall state on which of
             the subdivided parcels the residential structure permitted by
             this Deed may be constructed. Deeds to all other parcels
             shall recite that no additional residential structure is
             permitted.


                                            2
Id., Exhibit A (1996 deed); R.R. at 18a (emphasis added).1
              Following their purchase, the Lapps sought permission from the Board to
subdivide their land on multiple occasions and each time it denied their request.
Although the record is somewhat opaque, it is undisputed that the land comprises
slightly less than one hundred acres which is physically divided by a road, leaving
approximately twenty acres on one side and the remainder on the other. In each
request, the Lapps sought to subdivide off the smaller piece. In pertinent part, the
denial letters provide as follows:

              November 1995: “The Board discussed at length your
              proposal to subdivide the house and 20 acres off the . . .
              Harnish farm which you are buying. . . . [It] felt that to take
              the 20 acres off would not result in a commercially viable
              farm operation.”
              March 1999: Specifically referencing the fact that the Lapps
              wished to convey a tract to two of their children, the 1999
              letter provided: “This morning at [its] meeting, the Board
              reviewed your request to subdivide the twenty acres and farm
              buildings . . . from the remainder of the farm . . . 75+ acres . .
              . . [It] continues to take the position that to take the twenty


    1
       Regarding any conflict between the 1985 easement and the 1996 deed, the Board determined in
its February 2008 letter denying the Lapps’ October 2007 application to subdivide that the 1996 deed
did not include the deed restrictions set forth in the 1985 easement. Accordingly, the Board in that
letter noted its motion requesting that the Lapps re-record the deed and include the applicable
restrictions set forth in the 1985 easement. Lapps’ November 22, 2013, Notice of Appeal, Exhibit E
(Board’s February 6, 2008, letter); R.R. at 36a. As evidenced by the arguments made in the present
lawsuit, the Lapps apparently failed to follow the Board’s directive.
     The Lapps make much of the fact that the Board’s solicitor prepared the 1996 deed and included
a provision regarding “economic viability.” The Board concedes that the law firm representing it in
the present appeal, at times, acted as solicitor for the Board in matters where the Board was a party.
It notes, however, that the Board was not a party to the sale between the Harnishes and the Lapps and
that the firm was not representing the Board when it prepared the 1996 deed. In any event, our
resolution of this appeal on procedural grounds renders irrelevant any conflict between the easement
provisions set forth in the 1996 deed and the 1985 easement.



                                                  3
              acres off would not result in a commercially viable farm
              operation.”
              December 2003: “According to the [1985 easement], a total
              of two acres may be subdivided from the farm. One acre was
              subdivided from the farm in 1995, leaving one more acre that
              may be subdivided. For this reason, your request to
              subdivide more than one acre was not approved.”

Board’s January 29, 2014, Petition to Quash Appeal, Exhibits A, B, and C (Board’s
letters dated November 21, 1995, March 25, 1999, and December 1, 2003); R.R. at 81-
83a.
              After the Board’s 2003 letter, the evidence reflects that the Lapps made
various requests to the Board to reconsider their request to subdivide their farm in
2007, 2008, 2012, and 2013 (the denial at issue in the present appeal). Those requests
included the Lapps’ October 2007 written application for subdivision on the Board’s
form, wherein they requested to subdivide approximately nineteen acres.                    Lapps’
November 22, 2013, Notice of Appeal, Exhibit D (October 2007 application); R.R. at
33-34a.2 In its February 2008 denial letter, the Board indicated that it had denied the
Lapps’ October 2007 request in January 2008 because the 1985 easement “by which
your predecessor in title preserved the farm and which was in effect when you
acquired the farm” does not permit agricultural subdivisions of the property. Id.,
Exhibit E (Board’s February 6, 2008, letter); R.R. at 36a. As noted above, the 1985
easement refers only to residential subdivisions. The Lapps did not appeal from the
denial of their October 2007 written application.


    2
       In response to the form’s printed query as to how the subdivision would promote the continued
viability of, and would be compatible with, the farmland preserved for agricultural use, the Lapps
responded as follows: “A residence currently exists on both proposed tracts, with each resident
farming their respective side of the road. No additional structures will be constructed. The 19-acre
tract is, and will remain, a viable farm.” Id. at 34a.



                                                 4
             Subsequently, although the minutes from the Board’s August 2008
meeting indicate that there were no pending requests for subdivision, the section
entitled “Business from Guests” reflects that Mr. Len Ferber again addressed the Board
on behalf of Mr. Lapp regarding his request to subdivide approximately twenty acres
from his farm. Mr. Ferber provided the Board with a copy of the 1996 deed, which
included “a paragraph stating the farm may be subdivided if the subdivision does not
harm the economic viability of the farmland for agricultural production.” Board’s
Minutes from August 28, 2008, Meeting; R.R. at 87a. The minutes indicate that “Mr.
Lapp has been informed numerous times through letters, monitoring reports, visits to
his farm and his own attendance at meetings of the [Board] that . . . his deed references
the wrong easement, and that the paragraph describing subdivision that [Mr. Ferber]
just referenced is not part of the Grant of Easement that applies to Mr. Lapp’s farm.”
Id. Stating that the Grant of Easement that applies to Mr. Lapp’s farm does not permit
the subdivision of twenty acres, staff was to mail copies of relevant correspondence
regarding that issue to Mr. Ferber for his review.
             Approximately four years later, in May of 2012, in a document
characterized as a petition for special exception, the Lapps again sought to have the
Board consider their request to subdivide their farm into two farms, one containing
twenty acres and the other seventy-five. In their petition, the Lapps cited the 1996
deed in support of their averment that a subdivision would not “harm the economic
viability of the subject land for agricultural production.” Lapps’ November 22, 2013,
Notice of Appeal, Exhibit F (May 2012 petition for special exception); R.R. at 41a.
The Board’s director in June 2012 advised counsel for the Lapps that he was declining
to place their petition for special exception on the agenda for the next Board meeting
because “the Lapps have, on several occasions, submitted an identical subdivision



                                            5
request to the [Board] seeking its approval for the subdivision . . . in the same manner
as your recent request . . . [and it] has consistently and unanimously declined to
approve the proposed subdivision of the preserved farm.” Id., Exhibit G (Board’s June
6, 2012, letter); R.R. at 58a (emphasis added). In summary, the director stated: “After
careful staff review and much discussion, it is our conclusion that no new facts,
circumstances or arguments have been presented that would warrant placing the matter
before the Board, yet once again, for its consideration.” Id. The Lapps did not appeal
from the Board’s June 2012 letter denying their May 2012 petition for special
exception nor, indeed, were appeals filed from any of the prior requests.
             In August 2013, more than a year after the Board’s June 2012 refusal to
place the Lapps’ May 2012 subdivision request on the agenda, the Lapps again
appeared before the Board. In the October 2013 letter from the Board to the Lapps’
attorney that the Lapps treated as a final adjudication for purposes of the present
appeal, the Board stated as follows:

             At the August 22, 2013 meeting of the . . . Board, you
             requested that the Board hear a request for subdivision of the
             preserved farm owned by [the Lapps].
             The Board has consistently and unanimously denied
             numerous, identical requests for subdivision of this farm.
             After review and discussion, the Board has declined to hear
             the subdivision request another time.

Id., Exhibit H (Board’s October 25, 2013, letter); R.R. at 60a (emphasis added).
Subsequently, the Lapps appealed to common pleas and, following discovery, it
granted the Board’s petition to quash their appeal as untimely. The Lapps’ appeal of
that order is now before us for review. On appeal the Lapps argue that the court erred
in determining that their appeal was untimely and that it should have granted their
appeal on the merits.



                                           6
                 Our review of an order quashing an appeal as untimely is limited to
determining whether the court abused its discretion or committed an error of law. First
Ave. Partners v. City of Pittsburgh Planning Comm’n, 151 A.3d 715, 719 (Pa.
Cmwlth. 2016). Here, the trial court reasoned that the October 2013 letter stating that
the Board would not put the matter on its agenda did not constitute an adjudication as
defined in Section 101 of the Administrative Agency Law.3 Where an agency’s order
or determination is not an adjudication, the remedy of appeal to the court is not
available. Cook v. Pa. Dep’t of Agric., 646 A.2d 598, 601 (Pa. Cmwlth. 1994).
Moreover, the Lapps’ appeal from that action was untimely with respect to any past
adjudications which denied their subdivision requests on the merits.
                 Initially, we note the requirements for both an applicant and the Board
regarding requests to subdivide farm land that is the subject of an agricultural
conservation easement. Section 14.1(i)(2)(i) and (ii) of the Agricultural Area Security
Law,4 in pertinent part, provides:
             (i) Subdivision of land after easement purchase. ̶
                    ...
                    (2) The county board may agree to permit a parcel of
             land subject to an agricultural conservation easement to be
             subdivided after the granting of such easement as follows:
                           (i) The landowner of record may submit an
             application, in such form and manner as the county board

    3
        An adjudication is defined, in pertinent part, as follows:
                 Any final order, decree, decision, determination or ruling by an agency
                 affecting personal or property rights, privileges, immunities, duties,
                 liabilities or obligations of any or all of the parties to the proceeding in
                 which the adjudication is made.
2 Pa. C.S. § 101.
    4
      Act of June 30, 1981, P.L. 128, as amended, added by Section 3 of the Act of December 14,
1988, P.L. 1202, 3 P.S. § 914.1(i)(2)(i) and (ii).



                                                      7
            may prescribe, to the county board requesting that a parcel of
            land subject to an easement be subdivided. Upon receipt of
            the application, the county board shall cause to be forwarded
            written notification thereof to the county zoning office,
            county planning office and county farmland preservation
            office, herein referred to as the reviewing agencies. Each
            reviewing agency shall have 60 days from receipt of such
            notification to review, comment and make recommendations
            on the proposed application to the board.
                          (ii) After reviewing the application and the
            comments and the recommendations submitted by the
            reviewing agencies, the county board shall approve or reject
            the application to subdivide within 120 days after the date of
            its filing unless the time is extended by mutual agreement of
            the landowner and reviewing agencies.
                    ...
                          (iv) If the application to subdivide is rejected by
            the county board, the application shall be returned to the
            landowner with a written statement of the reasons for such
            rejection. Within 30 days after the receipt of the statement of
            rejection, the landowner may appeal the rejection in
            accordance with 2 Pa. C.S. Ch. 5 Subch. B (relating to
            practice and procedure of local agencies) and Ch. 7 Subch.
            B (relating to judicial review of local agency action).
            [Emphasis added.]

            As Section 14.1(i)(2)(i) of the Agricultural Area Security Law provides,
the process to obtain subdivision approval from the Board is initiated by a written
application. Here, the evidence reflects that a representative for the Lapps made an
oral request regarding subdivision at an August 2013 meeting in excess of one year
after the Board’s June 2012 determination that there were “no new facts, circumstances
or arguments . . . presented that would warrant placing the matter before the Board, yet
once again, for its consideration.” Lapps’ November 22, 2013, Notice of Appeal,
Exhibit G (Board’s June 6, 2012, letter); R.R. at 58a. Absent a written application to
the Board, there was nothing the Board was required to consider. Even assuming that



                                           8
rejection of a request to place a matter on the agenda could in some circumstances
amount to a “final . . . ruling . . . affecting property rights,” the refusal to do so based
on the Lapps’ August 2013 oral request plainly did not constitute an adjudication of
their subdivision rights.
               The Lapps maintain, nonetheless, that the Board never afforded them
notice and an opportunity to be heard on the merits of their subdivision request, and
thus there was never a valid adjudication, so we must send the matter back to the
Board to give them another bite of the apple. The problem with this argument is
twofold. First, the record does not support their bare assertion. Although the record
shows that the Board considered and rejected their requests many times over the past
twenty years, the Lapps, after discovery, placed nothing in the record before common
pleas to suggest that they were ever denied a hearing until their sixth request in 2012.
Second, even assuming arguendo that the Lapps may have been denied due process in
the procedures leading up to one or more of those adjudications, they never appealed
any of them nor, as far as the record reflects, made any complaint about the process at
the time.5 Their present argument simply comes too late, as does this appeal with
respect to any actual adjudication which occurred years ago. Thus common pleas did
not err in quashing it.6

    5
       Although we may have some concerns that the procedure outlined in the statute does not
expressly provide for a hearing, we need not address these concerns here.
     6
       Moreover, the Lapps have not averred, let alone established, any change of circumstances
justifying relitigating their oft-repeated request to subdivide the twenty acres across the road from the
main portion of their farm, the Board was amply justified under principles of res judicata in refusing
to reopen the matter. This Court provided a detailed description of res judicata in J.S. v. Bethlehem
Area School District, 794 A.2d 936, 939 (Pa. Cmwlth. 2002), wherein we stated as follows:
                     Res judicata encompasses two related . . . principles: technical
             res judicata and collateral estoppel. Technical res judicata provides that
             where a final judgment on the merits exists, a future lawsuit on the
(Footnote continued on next page…)


                                                   9
              Accordingly, we affirm.



                                             _____________________________________
                                             BONNIE BRIGANCE LEADBETTER,
                                             Senior Judge




_____________________________
(continued…)
             same cause of action is precluded. Collateral estoppel acts to foreclose
             litigation in a subsequent action where issues of law or fact were
             actually litigated and necessary to a previous final judgment.
                      Technical res judicata requires . . . four factors: (1) identity of
              the thing sued upon or for; (2) identity of the causes of action; (3)
              identity of the persons or parties to the action; and (4) identity of the
              quality or capacity of the parties suing or being sued. Res judicata
              applies to claims that were actually litigated as well as those matters
              that should have been litigated. Generally, causes of action are identical
              when the subject matter and the ultimate issues are the same in both the
              old and new proceedings.
                         Similarly, collateral estoppel bars a subsequent lawsuit where
                (1) an issue decided in a prior action is identical to one presented in a
                later action, (2) the prior action resulted in a final judgment on the
                merits, (3) the party against whom collateral estoppel is asserted was a
                party to the prior action, or is in privity with a party to the prior action,
                and (4), the party against whom collateral estoppel is asserted had a full
                and fair opportunity to litigate the issue in the prior action. [(citations
                omitted) (emphasis added).]
In response to the Lapps’ argument that there are economically viable grounds for their subdivision
request and that, accordingly, the Board erred in determining that their latest request was identical,
we reiterate that the Board as early as its February 2008 letter denying their written application for
subdivision ruled, inter alia, that they were bound by the deed restrictions in the 1985 easement and
not those set forth in the 1996 deed with the economic viability language.



                                                 10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Amos S. Lapp and Emma S. Lapp,         :
                                       :
                        Appellants     :
                                       :
                  v.                   :   No. 1845 C.D. 2016
                                       :
Lancaster County Agricultural Preserve :
Board                                  :


                                  ORDER


            AND NOW, this 31st day of July, 2017, the order of the Court of
Common Pleas of Lancaster County is hereby AFFIRMED.



                                    _____________________________________
                                    BONNIE BRIGANCE LEADBETTER,
                                    Senior Judge
