Commonwealth Court of Pennsylvania, 2057 C.D. 2010 July 12, 2011: Restriction to “recreational use” in Declaration of Covenants, Conditions and Restrictions (Declaration) does not allow structure or use for basketball court. Unreported opinion.
Land acquired by a Township in part with county funds was subject to the Declaration stating the land would be used only “for wildlife refuge, sanctuary, open space, agricultural, recreational, historical, cultural, or natural resource conservation purposes.” The land was later conveyed to Parsons subject to the Declaration and a purchase agreement (Agreement) that further provided that the land would be conveyed subject to a deed restriction allowing use only as a single family dwelling, tree farm or horse farm as allowed by local zoning, and prohibiting new buildings other than those used “for the keeping of horses”. (Court’s opinion does not state whether such a deed restriction was recorded.) Parsons built a two-story, 14,000 square foot, 100′ by 65′ steel pole barn for use as “an indoor community basketball facility”, without obtaining any municipal permits.
When the Township sought court approval to require demolition of the structure, the trial court concluded that the pole barn qualified as a “recreational facility” under the Declaration and the structure did not violate the Agreement because “the fact that the ‘community children, rather than horses, will be using the inside of the pole barn is a distinction without a difference.’” The trial court also ordered Parsons to offer the county an area equal to that of the barn plus a buffer subject to a Deed of Conservation Easement and Declaration of Restrictive Covenant. The appellate Commonwealth Court disagreed and reversed the trial court with instructions to order the Parsons to dismantle and remove the pole barn. The Commonwealth Court relied in part on statements made by the Township in its application for the funding grant from the county that was conditioned upon the land being subject to the Declaration. In the application the Township said the property’s use was to be limited to “passive recreation” and “agricultural use.”