OFFICIAL OPINION No. 17

OFFICIAL OPINION No. 17 Land and Water Reclamation and Conser vation Fund-Pa. Const. Art. VIII, §16- Grant s-in-aid for r ecreation projects 1. The provisions of The Land and Water Reclamation and Conservation Fund, Pa. Const. art. 8, § 16, allows the Department of Community affairs to fund indoor park and recreation facilities. 2. The Land and Water Conservation and Reclamation Act, Act of January 19, 1968, P.L. (1967) 996 (32 P.S. §§5101, et seq.) does not bar the Depart· ment of Community Affairs from making grants-in-aid for the develop· ment of indoor recreation projects. OPINIONS OF THE ATTORNEY GENERAL 37 3. This opinion should in no way be read as permitting the Department of Community Affairs to devote substantial funds to the construction of rec- reation facilities which are solely or primarily indoor in character. Honorable William H. Wilcox Secretary Department of Community Affairs Harrisburg, Pennsylvania Dear Secretary Wilcox: Harrisburg, Pa. March 2, 1973 You have requested an opinion as to the legality of a Project 500 grant for the renovation of a structure located on public parkiands for use as an indoor-outdoor theater. The structure is an abandoned barn, part of a park site acquired with Project 70 funds. You are advised that, if made in a manner consistent with this opinion, there is no legal bar to such a grant. The Commonwealth was authorized in 1967 to create The Land and Water Conservation and Reclamation Fund. Pa. Const. Art. 8, §16. The General Assembly, pursuant to the proceeding section enacted The Land and Water Conservation and Reclamation Act, Act of January 19, 1968, P.L. (1967) 996 (32 P.S. §§5101, et seq. ) ("Project 500 Act"). The Department of Community Affairs ("Department") was allocated $75,000,000 by the Project 500 Act for grants-in-aid to political subdivisions to provide up to fifty percent of the cost of certain park and recreation projects. Thus far, the constitutional provision and the Project 500 Act have been interpreted to allow the Department to make grants only for indoor park and recreational facilities and integral in- door facilities. Integral indoor facilities are those deemed neces- sary for proper utilization of a funded outdoor facility, for ex- ample, a bath house for an outdoor swimming pool. These opin- ions have great weight to the conservation and reclamation fac- ets of the state law. Conservation was viewed in a classic "do not disturb" manner. However, as will be discussed below, we think this view of conservation and reclamation is unnecessarily restrictive. Moreover, even assuming that the primary purpose of Project 500 is the creation of relatively undeveloped parks and open spaces, it does not follow that no indoor facilities may be constructed with Project 500 funds. We conclude that pre- vious opinions must be overruled insofar as they absolutely bar the Department from making grants for the develoument of in- door park and recreation facilities with Project 500 funds. We begin our analysis with the State Constitution. Project 500 was preceded by the Project 70 program. Project 70 provided primarily for the acquisition of land. Pa. Const., Art. 8 §15. In contrast the Project 500 Constitutional provision stresses con- servatio~ reclamation and development, in addition to acquisi- tion. The' Constitution, Art. 8 §16, provides for : 38 OPINIONS OF THE ATTORNEY GENERAL ''[A] Land and Water Conservation and Reclamat~on Fund to be used for the conservation and reclamat10n of land and water resources of the Commonwealth, in- cluding the elimination of acid mine drainage, sewage, and other pollution from the streams of the _Common- wealth, the provision of State financial a~s~stance to political subdivisions and municipal authonties of the Commonwealth of Pennsylvania for the construction of sewage treatment plants, the restoration of abandoned strip-mined areas, the control and extinguishment of surface and underground mine fires, the alleviation and prevention of subsidence resulting from mining oper- ations, and the acquisition of additional lands and the reclamation and development of park and recreational lands acquired pursuant to the authority of article nine, section twenty-four [now art. 8, §15] of this Constitu- tion, subject to such conditions and libilities as the General Assembly may prescribe." This difference in emphasis is substantial and the voters of the Commonwealth should be deemed to have recognized that Pro- ject 500 was an expansion of Project 70 in scope. The broader scope is, however, sufficient to allow Project 500 grants for indoor park and recreation facilities. There are no words in the constitutional provision which limit the funds to outdoor facilities. The phrases following "including" were in a 1970 Attorney General's Opinion, found not to be a limitation on the preceding constitutional language, but rather an enlarge- ment of the language. Pa. Att'y Gen. Op., May 1, 1970. The men- tion of development of Project 70 lands is merely an indication of possible sites for development. Moreover, Pennsylvania courts have often held that constitutional provisions such as the one here should be given a broad construction. Evans v. West Nor- riton Township Municipal Authority, 370 Pa. 150, 87 A. 2d 474 (1952. We conclude that Department funding of indoor park and recreational facilities would not violate the provision. The constitutional provision authorizes the General Assembly to prescribe conditions and liabilities for the Project 500 pro- gram. The General Assembly did so in the Project 500 Act cited above. The Project 500 Act in no way dictates that Department development grants may not be made for indoor park and recre- ation facilities. The Department under the Project 500 Act may pay up to fifty percent of the cost: " ( i) of development of county and municipal park and recreation lands including lands acquired under the act of June 22, 1964 (P. L. 131), known as the 'Project 70 Land Acquisition and Borrowing Act' to be used for county and municipal park and recreation purposes· ( ~i ~ to acquire and ~evelop additional county and mu: mc1pal nark. recreation, and open space lands in those OPINIONS OF THE ATTORNEY GENERAL regions where the statewide outdoor recreation plan indicates a need for those lands; and (iii) for studies conducted to determine park and recreational needs and the location of facilities." 32 P.S. §5116 (a) (4). 39 The first subparagraph of the preceding allows grants for the distinct purpose of development of park and recreation lands. There is no mention of development of land for outdoor park and recreation purposes. The second subparagraph speaks of acquisi- tion as well as development. Only in this subparagraph is "outdoor" mentioned. In this subparagraph, the Legislature dem- onstrates it was conscious of outdoor recreation programs, indeed a statewide outdoor recreation plan. The third subparagraph, concerned with studies, also makes no indoor/outdoor distinc- tion. No other portion of the Project 500 Act speaks to an indoor/ outdoor distinction for purposes of Department development grants. Recreation is only defined in the phrase, "Recreation and historical purposes" ( 32 P.S. §5103 ( 1)), and that phrase is not used in the paragraph of the Project 500 Act directly ap- plicable to the Department. The definition of development does not forbid indoor development, speaking of, "any construction" . .. required for and compatible with the physical development, improvement of land .... " 32 P.S. §5103 ( 3). Park is not defined. Also, at 32 P.S. §5116(a) (3), Project 500 funds are allocated to the Department of Forests and Waters, Fish and Game Com- missions and Historical and Museum Commissions " ... for the cost of planning, related administrative expenses and develop- ment of public outdoor recreation areas .... " (Emphasis added. ) The General Assembly again here provides explicitly for "out- door" recreation development. This explicit reference to "out- door" recreation and the specificity of this paragraph is in sharp contrast to paragraph ( 4), which allocates Project 500 funds to the Department of Community Affairs. This difference in lan- guage would indicate that the General Assembly intended to al- low local governments a degree of autonomy and flexibility in planning and developing their Project 500 recreation lands. We, therefore, conclude that neither the language nor the structure of the Project 500 Act would bar Department grants for develop- ment of indoor recreation projects. We must emphasize here that this opinion should in no way be read as permitting the Department to devote substantial funds to the construction of park and recreation facilities which are solely or primarily indoor in character. We have stated that neither the constitutional provision nor the Project 500 Act bar the Department from using Project 500 funds for facilities where such facilities are an integral part of the development of rec- reation and park lands and where that development is consistent with the purposes of the Project 500_ Act.. It is cl~ar that Project 500 recreation funds were meant primarily to aid outdoor park and recreation programs. This is evidenced by the conservation- 40 OPINIONS OF THE ATTORNEY GENERAL reclamation and non-development themes of both the constitu- tional provision and the Project 500 Act. See; 32 P.~: ~5103(2 ). The development of numerous indoor recreation fac1hties would be a violation of this intent. The instant proposal is for the renov~tion of a ~uilding to be used, in part, for indoor theater. There is no quest~on that ~hea­ ter may be deemed recreatio_n . .t\lso, Pennsylva.rua expe~1ence has never found theaters a v10labon of parks. Thus, consistent with the above, the Department may allow a grant for the reno- vation. Sincerly yours, MARK P. WIDOFF Deputy Attorney General ISRAEL P ACKEL Attorney General