       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Sally Schwartz,                         :
            Appellant                   :
                                        :
                  v.                    :   No. 183 C.D. 2017
                                        :   Argued: October 17, 2017
Chester County Agricultural Land        :
Preservation Board and Arborganic       :
Acres                                   :


Sally Schwartz                          :
                                        :
                  v.                    :   No. 226 C.D. 2017
                                        :   Argued: October 17, 2017
Chester County Agricultural Land        :
Preservation Board and Aborganic        :
Acres                                   :
                                        :
Appeal of: Chester County               :
Agricultural Land Preservation Board    :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ROBERT SIMPSON, Judge (P.)
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
SENIOR JUDGE COLINS                                      FILED: March 2, 2018

            Before this Court are the cross-appeals of the January 11, 2017 order of
the Court of Common Pleas of Chester County (Trial Court) filed by the designated
appellant Sally Schwartz (Appellant) and the Chester County Agricultural Land
Preservation Board (Board).1 For the following reasons, we reverse the Trial Court’s
order insofar as it denied the Board’s motion to dismiss Appellant’s Petition for
Review.
                 On November 25, 2015, Appellant initiated this action by sending a
document entitled “Formal Complaint,” to the Board.               (Formal Complaint,
Reproduced Record (R.R.) at 123a-130a.) The “Formal Complaint” alleges that land
located at 901 Cherry Hill Lane in North Coventry Township, Chester County,
owned by E. Kent High, Jr. and Corrine High (collectively Grantors), and known as
“High Farm,” is being used in a manner that violates the conservation easement
(Easement) that Grantors entered into with North Coventry Township, Chester
County, and the Board (collectively Grantees). (Id.; Easement, R.R. at 346a-365a.)
The Easement burdens 64.5 acres of High Farm (the Property) pursuant to the terms
of the 2003 Northern Chester County Agricultural Conservation Easement
Challenge Grant Program. (Northern Chester County Agricultural Conservation
Easement Challenge Grant Program Guidelines, R.R at 171a-201a.) This program
was established by Chester County in accordance with Pennsylvania law to protect
and conserve prime agricultural farmland by facilitating the purchase of easements
that limit development and use of agricultural land for nonagricultural purposes.
(Id.)
                 Subsequent to Grantors’ execution of the Easement, E. Kent High and
Robert MacMillian, partners in Arborganic Acres, LLP (Arborganic), informed the
Board at a November 17, 2009 meeting that Arborganic intended to use a portion of
the Property to mix and process organic mulch both for High Farm and for public
sale. In the minutes of the meeting, the Board noted that “staff would continue to

1
    Arborganic Acres, LLP, is not participating in this appeal.

                                                   2
monitor that the [Property] remains in compliance with the [Easement].” (Board
Minutes 11/17/09, R.R. at 367a.)       Arborganic received an On-Farm Source
Separated Composting permit from the Pennsylvania Department of Environmental
Protection (DEP) in December 2009, and then began operating an organic
composting facility on 5 acres of the Property. Since issuing the permit, DEP has
received more than 80 complaints from surrounding neighbors and inspected the site
over 40 times. (DEP Letter 9/12/2014, R.R. at 394a-396a.) Following complaints,
the Board made 7 site visits to the Property in 2014 to inspect and determine whether
there were violations of the Easement. (2014 Easement Monitoring Inspection
Report, R.R. at 372a-373a; Board Minutes 08/26/14, R.R. at 389a-391a.)
             In her “Formal Complaint,” Appellant contends that Arborganic is
operating an industrial waste collection and processing facility on the Property and
she requested that the Board take action to enforce the terms of the Easement and
bring the Property into compliance with the constraints burdening conserved
agricultural land in Chester County. (Formal Complaint, R.R. at 123a-130a.)
Following receipt of the “Formal Complaint,” the Board visited the Property to
inspect the composting operation first hand and pose questions to Arborganic.
(Letter to Kent High 01/06/16, R.R. at 263a.) The Board also held a meeting to
allow members of the public to voice their concerns regarding Arborganic’s
operations at the Property. (Hearing Transcript 04/26/16, R.R. at 267a-326a.) On
May 25, 2016, the Board sent a letter to Appellant’s counsel and counsel for
Arborganic stating that “[t]he operations taking place upon the [Property] appear to
be consistent with the terms of the [Easement] in place.” (Letter to Appellant and
Arborganic Acres’ Counsel 05/25/16, R.R. at 121a-122a.)



                                         3
                 Appellant filed a Petition for Review of the Board’s letter with the Trial
Court. By motion, the Board and Arborganic sought to dismiss the Petition on the
basis that Appellant lacked standing and that the May 25, 2016 letter from the Board
was not an adjudication. On January 11, 2017, the Trial Court issued an order
denying the motion to dismiss and denying the Petition; in a footnote, the Trial Court
addressed its reasoning for ruling against Appellant on the merits but did not address
the Board’s argument that the Petition should be dismissed, concluding it was moot.
(Trial Court’s order, R.R. at 11a-12a.) Appellant and the Board filed cross-appeals
of the Trial Court’s order with this Court. On April 20, 2017, the Trial Court issued
a Pennsylvania Rule of Appellate Procedure 1925(a) opinion.
                 In its Rule 1925(a) opinion, the Trial Court described the activities
taking place on the Property as follows:


                 Pursuant to a lease from the [Grantors], [Arborganic]
                 operates an organic composting business on land subject
                 to the Easement. The business accepts manure, yard
                 waste, and some food processing waste from the
                 surrounding area to create organic compost which is then
                 used on the owner’s farm and other local properties.

(Trial Court 1925(a) Op. at 1-2.) The Trial Court distilled the issues to an argument
by Appellant that “the use of the [Property] is limited to ‘agricultural production’
and other acts specifically permitted by the terms of the [Easement],” and an
argument by the Board and Arborganic that “the language of the [Easement] is broad
enough to include all normal farming operations and that Arborganic’s use come[s]
within the ambit of ‘normal farming operations,’” as that term is defined by the
Agricultural Area Security Law2 (AASL). (Id. at 3.) The Trial Court concluded that

2
    Act of June 30, 1981, P.L. 128, as amended, 3 P.S. §§ 901-915.
                                                 4
it is impossible to have agricultural production without normal farming operations
and, therefore, by permitting agricultural production the Easement necessarily
permits normal farming operations. (Id. at 4.) In reaching this conclusion, the Trial
Court relied in part upon the purpose identified in the Department of Agriculture
Regulations in the Pennsylvania Code (Agriculture Code) for the county easement
purchase program, which includes to “protect normal farming operations in
agricultural security areas from incompatible nonfarmland uses that may render
farming impracticable,” and to “protect normal farming operations from complaints
of public nuisance against normal farming operations.” 7 Pa. Code § 138e.14(3),
(4); (Trial Court 1925(a) Op. at 4). The Trial Court also concluded that Appellant
had standing to bring her appeal and that the Board had authority to enforce the terms
of the Easement, but that the issues were moot in light of the Trial Court’s decision
on the merits. (Trial Court 1925(a) Op. at 2, 5.)
               Before this Court, Appellant argues that the current use of the Property
violates the terms of the Easement and the AASL. Appellant contends that the Board
has authority to enforce the terms of the Easement and a duty to exercise that
authority. Appellant further contends that if this Court were to conclude that the
Board’s letter was not an adjudication appealable to the Trial Court, then her appeal
should have been treated as a complaint by the Trial Court and this Court should still
exercise appellate review pursuant to Section 708(b) of the Judicial Code, 42 Pa.
C.S. § 708(b).3 The Board argues that Appellant does not have standing and that the

3
  Section 708(a) of the Judicial Code provides that as a general rule, “No objection to a
governmental determination shall be defeated by reason of error in the form of the objection or the
office of clerk of court in which the objection is filed.” Addressing appeals specifically, Section
708(b) of the Judicial Code provides:

               If an appeal is improvidently taken to a court under any provision of
               law from the determination of a government unit where the proper
                                                5
letter issued by the Board following its receipt of Appellant’s “Formal Complaint”
is not an appealable adjudication. The Board also argues that if this Court were to
reach the merits of Appellant’s argument, then this Court should affirm the Trial
Court’s order because Arborganic’s mulching operation is permissible under the
terms of the Easement and applicable Pennsylvania law, including the AASL. For
the following reasons, we hold that Appellant does not have a third-party right to
enforce the terms of the Easement and that the letter provided to Appellant and
Arborganic by the Board is not an adjudication appealable to the Trial Court.
               Appellant is not a party to the Easement. The terms of the Easement
do not provide third-parties with the right to enforce the Easement. The regulations
under which Grantors applied for and received the Easement—the 2003 Northern
Chester County Agricultural Conservation Easement Challenge Grant Program—do
not provide for a third-party right of enforcement.4 However, paragraph 11 of the
Easement does specifically provide the Grantees with the power to determine if there
has been any actual or threatened violation of the Easement and the right to demand
corrective action and other remedies, including damages. (Easement, ¶11, R.R. at
352a-353a.) Therefore, while the terms of the Easement, which are first and
foremost the polestar of our inquiry, do address and provide for enforcement of the

               mode of relief is an action in the nature of equity, mandamus,
               prohibition, quo warranto or otherwise, this alone shall not be a
               ground for dismissal, but the papers whereon the appeal was taken
               shall be regarded and acted on as a complaint or other proper process
               commenced against the government unit or the persons for the time
               being conducting its affairs and as if filed at the time the appeal was
               taken.

42 Pa. C.S. § 708(b). However, the error in the instant matter is one of substance, not form.

4
 See Chester County Agricultural Conservation Easement Program Regulations (R.R. at 203a-
261a.)

                                                 6
Easement, the terms do not provide a mechanism for Appellant to enforce any
violation, threatened or actual.
                 The AASL likewise does not provide Appellant with a third-party right
of enforcement.          The AASL grants primary power to enforce agricultural
conservation easements to the county board, see 3 P.S. § 914.1(b)(2)(C)(xv), (xvii).
If the county board fails to act, as was the case alleged in the instant matter, the State
Agriculture Land Preservation Board (State Board) is permitted to institute and
prosecute enforcement actions. See 7 Pa. Code § 138e.206(d); see also 3 P.S. §
914.1(a). The AASL does not contain provisions establishing a procedure whereby
a third party may institute and prosecute an enforcement action. The absence of a
third-party right of enforcement is underscored by the presence of statutory language
providing for third-party participation in the designation of an agricultural security
area. Prior to participation in the easement purchase program, it is necessary for a
property to be designated as an agricultural security area and the AASL provides for
third-party participation in the creation, composition, modification, rejection or
termination of an agricultural security area.       See 3 P.S. § 905-910.        In such
circumstances, the AASL requires both that public hearings be held in accordance
with the Sunshine Act,5 see 3 P.S. § 906, and that “any party in interest aggrieved
by a decision or action of the governing body relating to the creation, composition,
modification, rejection or termination of an agricultural area may take an appeal to
the court of common pleas.” 3 P.S. § 910. Such a remedy is noticeably absent in
the portion of the AASL related to enforcement of agricultural conservation
easements. 3 P.S. § 914.1(a), (b)(2)(C)(xv)& (xvii); 7 Pa. Code § 138e.206(d).



5
    65 Pa. C.S. §§ 701-716.

                                            7
                 In addition to the AASL, the Easement draws upon the Conservation
and Preservation Easements Act6 (CPEA) to inform its terms. However, the CPEA,
like the AASL and the explicit terms of the Easement, does not provide Appellant
with standing to bring a third-party enforcement action. The CPEA specifically
identifies a list of persons who have standing to bring a legal or equitable action
enforcing an easement. Section 5(a) of the CPEA provides standing to bring a legal
or equitable action affecting a conservation or preservation easement to:


                 (1) An owner of the real property burdened by the
                 easement.

                 (2) A person that holds an estate in the real property
                 burdened by the easement.

                 (3) A person that has any interest or right in the real
                 property burdened by the easement.

                 (4) A holder of the easement.

                 (5) A person having a third-party right of enforcement.[7]

                 (6) A person otherwise authorized by Federal or State law.

                 (7) The owner of a coal interest in property contiguous to
                 the property burdened by the easement or of coal interests
                 which have been severed from the ownership of the
                 property burdened by the easement.


6
    Act of June 2001, P.L. 390, 32 P.S. §§ 5051-5059.

7
 This term “third-party right of enforcement” is defined by the CPEA as “[a] right provided in a
conservation easement to enforce any of its terms, granted to a governmental body, charitable
corporation, charitable association or charitable trust, which, although eligible to be a holder, is
not a holder.” 32 P.S. § 5053.

                                                 8
32 P.S. § 5055(a)(1)-(7).
                Appellant does not fall within any of the limited categories of persons
who have standing under the CPEA. Appellant, however, argues that under Section
5(a)(6) she is a person otherwise authorized by Federal or State law because she has
standing under the Local Agency Law.8 Appellant’s argument that she has standing
under the Local Agency Law is intertwined with the second issue raised by the
Board, which is its contention that the May 25, 2018 Letter it provided to Appellant
and Arborganic was not an adjudication.
                As a general rule, the Local Agency Law applies to all local agencies
even where no appeal is provided for. 2 Pa. C.S. § 751. The Local Agency Law
provides that the “provisions of this subchapter shall apply to any adjudication which
under any existing statute may be appealed to a court of record, but only to the extent
not inconsistent with such statute.” 2 Pa. C.S. § 751(b). Furthermore, the Local
Agency Law provides standing to appeal to “[a]ny person aggrieved by an
adjudication of a local agency who has a direct interest in such adjudication.” 2 Pa.
C.S. § 752. Appellant contends that the letter she received from the Board following
her “Formal Complaint,” is an adjudication made appealable by the Local Agency
Law. We disagree and hold that the letter reflects the Board’s exercise of its
prosecutorial discretion.
                This Court has consistently held that “when an agency considers
whether or not to take an enforcement action, it exercises prosecutorial discretion
that is beyond judicial review.”           Sinkiewicz v. Susquehanna County Board of
Commissioners, 131 A.3d 541, 548 (Pa. Cmwlth. 2015) (citing In re Frawley, 364
A.2d 748, 749 (Pa. Cmwlth. 1976)). Appellant has not identified a statute that

8
    2 Pa. C.S. §§ 101-106, 551-555, 751-754.

                                               9
creates a process for complaints to be filed with the Board or that otherwise imbues
the Board with quasi-judicial functions. 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. 3 P.S. § 914.1(a), (b)(2)(C)(xv), (xvii). 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.
             The Agricultural Code further defines the procedure for inspecting and
enforcing an easement, providing that for enforcement actions the county board
“shall commence and prosecute an action in the court of common pleas of the county
in which the restricted land is located seeking an order requiring correction of the
violation, enjoining further violation of the terms of the easement, and other
appropriate relief.” 7 Pa. Code. § 138e.206(a). The Agricultural Code also permits
the State Board to institute an action in the court of common pleas and recover costs
and attorneys’ fees from the county board should the county board fail to timely
prosecute an enforcement action. 7 Pa. Code § 138e.206(d). These provisions are
notable in three ways. First, they grant enforcement authority to the county board
and the State Board. Second, they create a check to ensure that the county board
properly executes its enforcement duties by permitting the State Board to recoup
costs and fees incurred should it have to act due to the county board’s failure to act.
Finally, they reserve the judicial function to the court of common pleas of the county
in which the eased land is located.




                                          10
             Even if the May 25, 2017 Letter issued by the Board was not beyond
judicial review, the Letter would not meet the criteria of an adjudication. The Local
Agency Law defines an “adjudication,” as:


             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. The term does not include any order
             based upon a proceeding before a court…


2 Pa. C.S. § 101. Accordingly, an adjudication requires two elements: (1) it must be
a final action; and (2) it must affect personal or property rights, privileges,
immunities, duties, liabilities or obligations of any or all of the parties to the
proceeding. See Merrell v. Chartiers Valley School District, 855 A.2d 713, 717 (Pa.
2004); Guthrie v. Borough of Wilkinsburg, 478 A.2d 1279, 1281 (Pa. 1984). The
Board’s May 25, 2017 Letter is not a final action; the Board has a continuing duty
to inspect the Property and to ensure compliance with the terms of the Easement.
Even if the Board had found a violation and issued a notice to the Grantors, the notice
of violation would still not be a final action because the AASL requires the Board to
provide the Grantors with the opportunity to take corrective action. 3 P.S. §
914.1(b)(2)(C)(xv), (xvii); 7 Pa. Code §§ 138e.205-138e.206.
             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, 2017 Letter to Appellant as a final action. However, Appellant’s


                                          11
narrative merely reconstructs the extent to which she attempted to dragoon the Board
into exercising powers that the General Assembly has not granted it.
               Accordingly, we reverse the order of the Trial Court insofar as it denied
the Board’s motion to dismiss Appellant’s petition for review.9



                                           __________ ___________________________
                                           JAMES GARDNER COLINS, Senior Judge




9
  Having concluded that the Trial Court erred in denying the Board’s motion to dismiss and
reaching the merits of Appellant’s Petition for Review, we do not reach the merits of the arguments
raised by Appellant’s appeal of that portion of the Trial Court’s order denying the Petition for
Review.
                                                12
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Sally Schwartz,                            :
            Appellant                      :
                                           :
                    v.                     :   No. 183 C.D. 2017
                                           :
Chester County Agricultural Land           :
Preservation Board and Arborganic          :
Acres                                      :


Sally Schwartz                             :
                                           :
                    v.                     :   No. 226 C.D. 2017
                                           :
Chester County Agricultural Land           :
Preservation Board and Aborganic           :
Acres                                      :
                                           :
Appeal of: Chester County                  :
Agricultural Land Preservation Board       :

                                     ORDER

              AND NOW, this 2nd day of March, 2018, that portion of the January
11, 2017 order of the Court of Common Pleas of Chester County denying the motion
to dismiss filed by the Chester County Agricultural Land Preservation Board is
hereby REVERSED and this matter is REMANDED to the Court of Common Pleas
of Chester County with instructions to dismiss Appellant Sally Schwartz’s Petition
for Review.
              Jurisdiction relinquished.


                                      __________ ___________________________
                                      JAMES GARDNER COLINS, Senior Judge
