Pennsylvania Case of the Month: Supreme Court Finds Environmental Immunity Act Offers No Protection From Interference with Approval Process

February 2011Newsletters In the Zone

In Pennsbury Village Assocs., LLC v. McIntyre, — A.3d —, 2010 WL — (Pa. 2011), the Pennsylvania Supreme Court held protestants could not seek protection under the Environmental Immunity Act (EIA), 27 Pa.C.S. §§ 8301-8305, for interference with the development approval process after the protestants had previously signed a settlement agreement with a developer and the municipality waiving their right to interfere.

In Pennsbury Village Assocs., a developer owned two large parcels in Pennsbury Township that bordered township land subject to an open space restrictive covenant. The developer applied for conditional use approval to use the parcels for mixed-use, high-density development. The township granted conditional approval, and the protestants appealed. The primary issues in dispute concerned whether a wastewater treatment facility and access road could be located on the township open space. The developer, protestants and the township ultimately entered into a stipulation agreement that gave the township the right to determine the access road configuration and included provisions regarding wastewater treatment.

Thereafter, the protestants communicated with township commissioners to persuade them to object and refuse to consent to the access road or wastewater treatment plant. As a result, the township issued a letter stating the access road and wastewater treatment plant were contrary to the restrictive covenant and they would oppose any such use. The developer filed suit against the protestants, alleging breach of contractual relationship and conspiracy, all of which arose out of the breach of the stipulation agreement. The protestants sought immunity from suit under the EIA, which protects citizens from Strategic Lawsuits Against Public Participation (SLAPP) suits where a citizen communicates with the government for the enforcement of environmental laws. The protestants alleged they were entitled to protection under the EIA because any interference was in furtherance of their protection of the environment. Specifically, they cited concerns about stormwater run-off.

The trial court denied the protestants’ request for immunity, and the protestants filed an interlocutory appeal as of right to the Commonwealth Court. The Commonwealth Court overturned, holding the protestants’ communications to the commissioners involved environmental laws and regulations because the township purchased the land with open space funds and the covenants attached to those parcels were intended as environmental regulations.

The Pennsylvania Supreme Court reversed, side-stepping the question of whether the restrictive covenants did indeed constitute an “environmental law or regulation” such that the EIA would even apply. The Court did, however, seem to acknowledge that general concerns about stormwater run-off cannot trigger the EIA’s protection. Instead, the Court held the protestants were not entitled to immunity on the basis that they waived their right to immunity under the EIA by entering the stipulated settlement agreement. The Court found Anti-SLAPP legislation – like the EIA – will not shield a party from liability where a party “waived the very constitutional right it seeks to vindicate.” In reaching this holding, the Court reaffirmed the enforceability of the settlement agreement to resolve development disputes. Despite the developer’s victory on the immunity issue, the Court noted the question of whether construction of the access road on township open space would violate the restrictive covenant was not before it and would not be decided.

For more information, please contact Clair E. Wischusen at 215.918.3559 or [email protected].