Mazur v. Trinity Area School District

926 A.2d 1260, 2007 Pa. Commw. LEXIS 324

• Court: Commonwealth Court of Pennsylvania
• Decided: June 25, 2007
• Status: Published

Opinions

OPINION BY

Judge LEAVITT.

Edward M. Mazur, Jeffrey W. Bull, and Citizens Against Tax Increment Financing (Citizens) appeal an order of the Washington County Court of Common Pleas (trial court) sustaining the preliminary objections of several local taxing districts¹ to their six consolidated actions. Each action challenged the use of tax increment financing for a commercial development project in South Strabane Township, Washington County. In three, Citizens appealed resolutions adopted by Washington County, the Trinity Area School District and South Strabane Township to participate in the financing arrangement. In the three remaining actions, Citizens sought equitable and declaratory relief on similar grounds,

1.e., that the decisions were wasteful of the tax dollar. In this case, we consider whether the trial court erred in determining that it lacked subject matter jurisdiction over Citizens’ claims and whether their equitable complaints failed to state claims upon which relief could be granted. We affirm.

At issue in this case is the use of tax increment financing (TIF)² for a proposed 333-acre commercial development known as Victory Centre in South Strabane Township, Washington County. Victory Centre will include a Tánger Factory Outlet Center, Bass Pro Shops, additional retail stores, a hotel and restaurants. In 2005, representatives of the taxing districts and the Washington County Redevelopment Authority formed a TIF Committee to discuss the creation of a tax increment district.³ In July 2005, the Redevelopment Authority presented its TIF proposal at a public meeting of the TIF Committee. The proposal calls for each of the three participating taxing districts to allocate 80 percent of the tax increment to the Redevelopment Authority for debt payment on the TIF loan with 20 percent of the increment retained by each taxing district. The estimated cost of Victory Centre is $400 million, of which 93 percent will be privately financed and the remainder financed by TIF. The TIF proposal has a term of 20 years. The TIF Committee approved the proposal.

Shortly thereafter, the taxing districts each held public meetings to vote on the proposal recommended by the TIF Committee. On August 4, 2005, the School Board, by a vote of 6-3, approved the School District’s participation in the TIF proposal. The County Commissioners approved the County’s participation on August 5, 2005, by a vote of 2-0 with one commissioner abstaining. The Township Supervisors considered the TIF proposal at public meetings beginning in August 2005.

On October 25, 2005, the Township Supervisors, by a vote of 3-2, enacted two ordinances creating the Victory Centre Development Tax Increment Financing District and approving the Township’s participation. The Supervisors declared that the TIF district is a blighted area, as required by Section 5(a)(6)(iv)(H) of the TIF Act, 53 P.S. § 6930.5(a)(6)(iv)(H). One of the Supervisors, Billy Bell, was unable to attend the October 25, 2005, meeting due to illness and cast his vote in favor of the TIF proposal by telephone. This was not the Township’s first action concerning the proposed location of Victory Centre. In August 2005, the Supervisors voted 5-0 to rezone the area as commercial and to amend the Township’s comprehensive plan to identify the area as a prime location for regional shopping and entertainment.⁴

Citizens commenced six separate actions against the School Board, the County and the Township Supervisors. Three of these actions appealed the taxing districts’ respective decisions to approve the TIF proposal. In summary, Citizens argued that the approval of the TIF proposal by each taxing district was a palpable abuse of discretion and a knowing waste of taxpayer resources. In support, they averred that the taxing districts could not in good faith adopt a proposal preconditioned on a designation of the subject property as blighted because the Township had only months earlier rezoned the property as commercial, identifying it as a prime location for regional shopping and entertainment. Accordingly, Citizens believed the TIF proposal was inconsistent with the Township’s revised master plan. Citizens also argued that the project was viable without tax increment financing since approximately 93 percent of the projected $400 million cost was to be privately financed. Finally, Citizens contended that the taxing districts made doubtful or false assumptions regarding the extent to which private property would need to be taken by eminent domain and relied on inaccurate cost estimates for obtaining rights of way, constructing roads and installing sewers.

With respect to the Township’s enactment of the requisite ordinances, Citizens averred that Supervisor Billy Bell’s vote by telephone was improper, contrary to law and constituted an abuse of discretion. Citizens asserted, inter alia, that Supervisor Bell was not present for several of the public meetings that preceded the Board’s vote on October 25, 2005, and that he did not hear any public comment at that final meeting. Citizens argued that the telephone vote procedure used in this case violated the Sunshine Act, 65 Pa.C.S. §§ 701-716.

Based upon the foregoing averments, Citizens asked the trial court to set aside the decisions of the taxing districts to approve the TIF proposal and, in the case of the School Board and the Township Board of Supervisors, declare that the individual members not participate in any subsequent vote on the TIF proposal.

Simultaneous with these “appeals,” Citizens also initiated complaints for equitable and declaratory relief against each of the taxing districts. The allegations in each of these complaints were identical to the allegations in the local agency appeals, as was the relief requested. Citizens acknowledged the corresponding agency appeal in each complaint, but stated that the complaints were filed as a precautionary measure should the trial court dismiss the agency appeals and leave them without an adequate remedy at law.

The taxing districts filed preliminary objections to all six actions, seeking to have them dismissed for lack of subject matter jurisdiction and for failure to state a cause of action. The School Board and the Township Supervisors also claimed absolute privilege and immunity on behalf of their individual members. The trial court consolidated the matters and, on March 28, 2006, entered an order dismissing all six actions. Citing this Court’s decisions in Ondek v. Allegheny County Council, 860 A.2d 644 (Pa.Cmwlth.2004), and Mercurio v. Allegheny County Redevelopment Authority, 839 A.2d 1196 (Pa.Cmwlth.2003), the trial court concluded that it lacked subject matter jurisdiction over all six of the actions. The trial court held, alternatively, that Citizens failed to state a claim upon which relief could be granted. The present appeal followed.

Citizens raise four issues on appeal. First, Citizens argue that the trial court erred in holding that it lacked subject matter jurisdiction over their appeals and complaints, noting that the Pennsylvania Supreme Court has not yet considered whether the enactment of an ordinance or resolution pursuant to the TIF Act is subject to judicial review. Second, assuming that jurisdiction lay over any of the actions, Citizens contend that the trial court erred by sustaining the taxing districts’ demurrers because their complaints averred facts sufficient to establish bad faith in the designation of the subject property as blighted. Third, Citizens argue that they were entitled to challenge the actions of the individual public officials in approving the TIF proposal. Fourth, Citizens assert that Supervisor Billy Bell violated the Sunshine Act by casting his vote by telephone.

We begin with the threshold issue of the trial court’s subject matter jurisdiction to hear Citizens’ appeals and complaints.⁵ This Court recently held in Ondek v. Allegheny County Council, 860 A.2d 644 (Pa.Cmwlth.2004), that an appeal will not lie under the Local Agency Law, 2 Pa.C.S. §§ 551-556, 751-754, from the enactment of a resolution by a local taxing entity authorizing the use of tax increment financing for a proposed commercial development. The rationale behind Ondek is that a TIF resolution is a purely legislative enactment intended to spur local development, and not an appealable “adjudication” under Section 752 of the Local Agency Law, 2 Pa.C.S. § 752. The same is true of the resolutions and ordinances enacted by the taxing districts in this case approving their participation in the TIF plan. The trial court found Ondek dispositive of the question of whether it had subject matter jurisdiction over Citizens’ appeals.⁶ We agree and hold that the Local Agency Law does not provide a vehicle for challenging the merits of legislative enactments.

We turn, next, to Citizens’ complaints against the taxing districts seeking equitable and declaratory relief. The trial court determined it lacked subject matter jurisdiction over these three actions since they, too, were challenges to the merits, or wisdom, of legislative enactments. In support, the trial court cited this Court’s decision in Mercurio v. Allegheny County Redevelopment Authority, 839 A.2d 1196 (Pa.Cmwlth.2003). Citizens disagree with the trial court’s interpretation of Mercu-rio.

In Mercurio, residents of Harmar Township, Allegheny County, sought to enjoin tax increment financing of a proposed commercial development. The residents raised three issues. First, they argued that the County Commissioners failed to hold a public hearing in violation of Section 5(a)(5) of the TIF Act, 53 P.S. § 6930.5(a)(5). Second, they contended that the adoption of the TIF plan by the taxing districts was arbitrary and capricious based upon a number of substantive defects, including that the defendants approved the TIF plan without due deliberation; the TIF plan conflicted with Harmar Township’s comprehensive plan; and the TIF district was not “blighted” under Section 12.1 of the Urban Redevelopment Law, 35 P.S. § 1712.1.⁷ Third, the residents averred that the developer’s revised permit application to the Pennsylvania Department of Environmental Protection changed the project so substantially that the development could not be implemented without an amendment to the TIF plan. In accordance with these claims, the residents sought a declaration that the County resolution adopting the TIF plan and the Township resolution creating the TIF district were each null and void; a declaration that the site of the TIF district was not blighted; and a permanent injunction prohibiting the defendants from further implementing the TIF plan.

The trial court rejected the residents’ claims. It determined that their challenges to the procedures used to pass the resolutions were untimely under 42 Pa. C.S. § 5571(c)(5).⁸ Regarding the allegations of substantive defects in the TIF resolutions, the trial court concluded that “absent a determination that the legislative body did not act in good faith or acted wholly arbitrarily a certification of an area as blighted was not subject to judicial review.” Mercurio, 839 A.2d at 1201. Accordingly, the trial court sustained the defendants’ preliminary objections and dismissed the residents’ complaint.

On appeal, the residents argued, inter alia, that their challenge was not untimely because the substantive defects alleged in their complaint rendered the resolutions that created the TIF district invalid. This Court rejected this argument and, in doing so, explained as follows:

Essentially, the Appellants disagree with, and attack the enactments by the various taxing bodies that created the TIF District. It is not within the jurisdiction of this Court to rule on the wisdom of legislative enactments. “The judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceeds along suspect lines.” Fischer v. Commonwealth Department of Public Welfare, 85 Pa.Cmwlth. 240, 482 A.2d 1148, 1161 (1984), affirmed, 509 Pa. 293, 502 A.2d 114 (1985), quoting, City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976).

Mercurio, 839 A.2d at 1203.⁹ See also Finucane v. Pennsylvania Milk Marketing Board, 136 Pa.Cmwlth. 272, 582 A.2d 1152, 1154 (1990) (“The role of the judiciary is not to question the wisdom of the action of a legislative body, but only to see that it passes constitutional muster.”).

This Court determined in Mercurio that the residents’ claims were not a proper subject of judicial review, but it also noted that a determination of blight “made with fraud or bad faith by the governmental entity” can be reviewed. Id. at 1204 (citing Schenck v. City of Pittsburgh, 364 Pa. 31, 70 A.2d 612 (1950) and In re Condemnation by Redevelopment Authority of the City of Lancaster, 682 A.2d 1369 (Pa.Cmwlth.1996)). However, because the residents in Mercurio failed to make any specific averment of fraud or bad faith by the governmental defendants, it was unnecessary to consider this possibility. Because Citizens place such high value on this observation in Mercurio, we review it further here.

At issue in Schenck, on which Mercurio is based, was a tract of land certified by the City Planning Commission as blighted and targeted for redevelopment by the Urban Redevelopment Authority. Schenck, one of the affected property owners, filed a bill in equity to enjoin City Council from approving the proposal, to enjoin the Authority and the redeveloper from executing a contract, and to enjoin the Authority from taking any steps to acquire land within the project area by eminent domain or to convey any such land to the redeveloper. Schenck asserted that the mere fact that the City Planning Commission certified the tract as blighted did not conclusively establish that the condemnation was for a public purpose.

Our Supreme Court answered that contention succinctly: “[I]n the absence of any indication that the Commission did not act in good faith or was wholly arbitrary in certifying the area designated by it as blighted, its certification to that effect is not subject to judicial review.” Schenck, 364 Pa. at 35, 70 A.2d at 614. The Court continued that the Commission’s findings of blight brought the matter within the scope of the Urban Redevelopment Law, which vested the power of eminent domain in the Urban Redevelopment Authority. The Court reiterated the long-standing principle that where the right of eminent domain is vested in a municipality or administrative body, “the question as to whether the circumstances justify the exercise of the power in a given instance is not a judicial one, at least in the absence of fraud or palpable bad faith.” Id. at 36, 70 A.2d at 614 (footnote omitted).

City of Lancaster reiterates these principles of eminent domain law. There, a condemnee appealed from a trial court order overruling his preliminary objections to a declaration of taking filed by the City of Lancaster’s redevelopment authority. The condemnee argued, unsuccessfully, that the authority acted in bad faith throughout the condemnation proceedings. This Court affirmed the trial court, noting that the condemnee had failed to sustain his heavy burden of demonstrating bad faith through clear averments of fact and clear, precise and indubitable evidence. City of Lancaster, 682 A.2d at 1372.

Schenck and City of Lancaster arose from complaints filed by individual landowners seeking to prevent the taking of their property by eminent domain. A taking of property by eminent domain can be challenged by filing preliminary objections pursuant to Section 306 of the Eminent Domain Code, 26 Pa.C.S. § 306. Indeed, as this Court explained in City of Lancaster, 682 A.2d at 1372. A taking can be stopped if the landowner succeeds in showing that the taking is not for a public purpose, and it is certain that a fraudulent condemnation is antithetical to a public purpose. At the same time,

[The] Local Agency Law does not apply to certifications of blight, because the Eminent Domain Code provides the exclusive method to challenge the propriety of the condemnation.

[i]t has uniformly been held that equity does not have jurisdiction to enjoin a condemnation, whether or not a declaration of taking has been filed; ... preliminary objections shall be the exclusive method of challenging the right or power to condemn.

Vartan v. Reed, 100 Pa.Cmwlth. 163, 514 A.2d 646, 648 (1986).

In reiterating these well-established eminent domain principles in Mercurio, this Court did not open the door to any member of the public to initiate a suit in equity to challenge the wisdom of an ordinance or resolution. It may be that an ordinance or resolution making a blight determination as a result of fraud could be challenged as procedurally defective pursuant to 42 Pa.C.S. § 5571(c)(5), although we are unable to find any such precedent. The other platform for pursuing a claim that a blight determination was fraudulent is in a condemnation proceeding by the person whose property is subject to condemnation. Litigants may not sidestep remedies prescribed by statute by pursuing a suit in equity. See City of Lancaster, 682 A.2d at 1372; Vartan, 514 A.2d at 648.¹⁰

Turning once again to Citizens’ specific claims, they are similar to those raised by the residents in Mercurio. Citizens argue that the approval of the TIF proposal by each taxing district was an abuse of discretion and a waste of taxpayer resources since approximately 93 percent of the projected $400 million cost of the Victory Centre is to be privately financed. They also maintain that the taxing districts made doubtful or false assumptions regarding the extent to which private property will need to be taken by eminent domain and relied upon inaccurate cost estimates for obtaining rights of way, constructing roads and installing sewers. These eonclusory allegations are nothing more than an attack on the wisdom of the taxing districts’ legislative enactments. Citizens do not allege that any of the ordinances or resolutions are unconstitutional and, under Mercurio, such allegations of harm are not justiciable. Accordingly, the trial court properly sustained the taxing districts’ preliminary objections to subject matter jurisdiction over those claims.

Assuming, arguendo, that this Court could review, in equity, a legislative blight designation resulting from fraud, we will, in the interest of finality, address Citizens’ second issue on appeal. They contend that they averred sufficient facts to establish bad faith in the Township Supervisors’ designation of the subject property as blighted and, therefore, the trial court erred by sustaining the taxing districts’ demurrer to that claim.¹¹ We disagree.¹²

Borrowing for the moment our Supreme Court’s analysis in Schenck and City of Lancaster, a determination of blight can be set aside only where fraud or bad faith by the governmental entity is proven. Schenck, 364 Pa. at 35, 70 A.2d at 614. Further, “[t]he law presumes that public officials perform their duties in good faith.” City of Lancaster, 682 A.2d at 1372. Bad faith cannot be averred “merely by bald assertions. Bad faith must be described by clear averments of fact in the pleadings and proved by clear, precise and indubitable evidence.” Id. Fraud must be pled with particularity. Pa. R.C.P. No. 1019(b). (“Averments of fraud or mistake shall be averred with particularity.”).

Citizens contend that because the Township Supervisors voted to rezone the property to a commercial designation, and at the same time declared the area to be a prime location for regional shopping and entertainment, “it is obvious that they cannot now assert that they in good faith believed the property to be ‘blighted’.” Citizens’ Brief at 14. This is a bald assertion, unsupported by any clear averments of fact to support a finding of fraud or bad faith. Moreover, Citizens do not explain how the designation of an area as blighted, and the conclusion that it is also a prime location for commercial development, are mutually exclusive. It seems just as likely that economic investment, whether private or tax increment financed, may be the catalyst that is necessary to realize the full commercial potential of a piece of property. That Citizens disagree with their elected Supervisors as to the appropriate financing mechanism is obvious; however, it is not a legally sufficient reason for a court to set aside their actions. The trial court properly sustained the taxing districts’ demurrer to Citizens’ challenge to the Township’s designation of the subject property as blighted.¹³

In their final issue on appeal, Citizens argue that the Township Board of Supervisors violated the Sunshine Act by allowing Supervisor Billy Bell to cast his vote in favor of the TIF proposal by telephone. Citizens aver that the Supervisors wrongfully prohibited any public discussion of the matter before Supervisor Bell cast his vote and should not have allowed his vote since Supervisor Bell was not present for several of the public meetings preceding the vote. Citizens believe that the public’s right under the Sunshine Act to participate and be meaningfully heard by their elected officials was abrogated. Again, we disagree.

The stated purpose of the Sunshine Act is as follows:

The General Assembly finds that the right of the public to be present at all meetings of agencies and to witness the deliberation, policy formulation and decision-making of agencies is vital to the enhancement and proper functioning of the democratic process and that secrecy in public affairs undermines the faith of the public in government and the public’s effectiveness in fulfilling its role in a democratic society.

65 Pa.C.S. § 702(a). This purpose is accomplished through Section 704, which states, with two exceptions not relevant here, that “[ojffieial action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public.” 65 Pa.C.S. § 704. For purposes of the Sunshine Act, a “meeting” is “[a]ny prearranged gathering of an agency which is attended or participated in by a quorum of the members of an agency held for the purpose of deliberating agency business or taking official action.” 65 Pa.C.S. § 703 (emphasis added).

Our Supreme Court considered a similar challenge to that raised by Citizens in Babac v. Pennsylvania Milk Marketing Board, 531 Pa. 391, 613 A.2d 551 (1992). In that case, the Court considered whether participation of members of the Pennsylvania Milk Marketing Board by speaker telephone in a meeting open to the public convened for the purpose of taking official action violated the Sunshine Act. The Court held that the Board members did not have to be physically present at all of the Board’s meetings, noting that under the Sunshine Act,

[official action by a quorum of members of an agency can take place at a meeting attended or participated in- by such quorum. In order to accord meaning to the words “or participated in”, we are compelled to conclude that, pursuant to Section [704], a quorum of members can consist of members not physically present at the meeting but who nonetheless participate in the meeting and that such quorum can take official action, provided that, the absent members are able to hear the comments of and speak to all those present at the meeting and all those present at the meeting are able to hear the comments of and speak to such absent members contemporaneously. Participation by speaker telephone clearly satisfies this mandate.

Id. at 395-396, 613 A.2d at 553. Also instructive is this Court’s more recent holding that “[a]lthough official actions must be conducted in open meetings, ‘the Sunshine Act does not require agency members to inquire, question and learn about agency issues only at an open meeting.’ ” Belitskus v. Hamlin Township, 764 A.2d 669, 672 (Pa.Cmwlth.2000) (quoting Sovich v. Shaughnessy, 705 A.2d 942, 945-946 (Pa.Cmwlth.1998)).

We agree with the trial court that Citizens failed to state a claim under the Sunshine Act. According to the record submitted by Citizens to this Court, Supervisor Bell was present for the Township’s August 23, 2005, public meeting. The primary agenda item for this meeting was the rezoning application submitted by a prospective tenant of Victory Centre. Nevertheless, the Supervisors heard numerous and lengthy comments from the public regarding the pending TIF proposal. Also, at the September 13, 2005, Township meeting, the Board formally considered the TIF ordinance and heard comments from the public. At the conclusion of the hearing, which the Supervisors continued to allow more time for their deliberation, Supervisor Charles M. Kosey stated on the record that “Mr. Bell is in the hospital. And Mr. Bell will be given all this information so he can be a part of this when we decide what we’re doing. And it will be done.” Reproduced Record at 471a. It is Citizens’ suggestion that Supervisor Bell was somehow uninformed, and that they were prohibited from informing him. This contention is belied by their own record on appeal. It is also contrary to the strong presumption that public officials perform their duties in good faith. City of Lancaster, 682 A.2d at 1372.

For all of these reasons, we affirm the order of the trial court.

ORDER

AND NOW, this 25th day of June, 2007, the order of the Court of Common Pleas of Washington County in the above-captioned matter, dated March 28, 2006, is hereby AFFIRMED.

1 . The taxing entities named as defendants in the consolidated actions are (1) Trinity Area School District, its School Board, and individual Board members; (2) Washington County, the Washington County Board of Commissioners, and individual Commissioners; and (3) South Strabane Township, its Board of Supervisors, and individual Supervisors. We shall refer to these entities collectively as the "taxing districts.”

2 . Tax increment financing is "a technique used by a municipality to finance commercial developments [usually] involving issuing bonds to finance land acquisition and other up-front costs, and then using the additional property taxes generated from the new development to service the debt.” Ondek v. Allegheny County Council, 860 A.2d 644, 645 n. 2 (Pa.Cmwlth.2004) (quoting Blacks Law Dictionary at 1502 (8th ed.2004)). The Tax Increment Financing Act (TIF Act), Act of July 11, 1990, P.L. 465, as amended, 53 P.S. §§ 6930.1-6930.13, was enacted in response to what the General Assembly perceived as a failure of the Urban Redevelopment Law, Act of May 24, 1945, P.L. 991, as amended, 35 P.S. §§ 1701-1719.1, to cure blighted conditions in the Commonwealth’s urban communities. 53 P.S. § 6930.2(a)(1) and (2). Hence the stated purpose of the TIF Act was to “provide an alternative method for use by authorities in pursuing redevelopment efforts under the Urban Redevelopment Law and other applicable laws.” 53 P.S. § 6930.2(a)(3).

3 . See Section 5(a)(2) of the TIF Act, 53 P.S. § 6930.5(a)(2) (“Each affected municipality and school district shall designate a representative to meet with the authority to discuss the project plan and the tax increment financing, and shall notify the authority of its designated representative.”). In May 2005, Citizens filed a complaint in the trial court alleging that the taxing districts violated the Sunshine Act, 65 Pa.C.S. §§ 701-716, because the TIF Committee meetings were not open to the public. This Court rejected Citizens' claims in Mazur v. Washington County Redevelopment Authority et al., 900 A.2d 1024 (Pa.Cmwlth.2006), appeal denied, 590 Pa. 671, 912 A.2d 839 (2006). We held that "the interaction described by Section 5(a)(2) of the TIF Act does not create an agency subject to the Sunshine Act.” Mazur, 900 A.2d at 1029. We also noted that the TIF Act requires public meetings and votes by the redevelopment authority and the taxing districts, all of which were conducted in this case.

4 . The proposed site of Victory Centre is located near the intersection of two interstate highways and is adjacent to The Meadows racing facility, which is currently being expanded to include a casino.

5 . When reviewing orders disposing of preliminary objections, our standard of review is clear: well-pled factual averments are admitted; conclusions of law are not. O’Hare v. County of Northampton, 782 A.2d 7, 11 n. 6 (Pa.Cmwlth.2001). When preliminary objections raise a question of subject matter jurisdiction, "[t]he trial court’s function is to determine whether the law will bar recovery due to a lack of subject matter jurisdiction.” Id. (quoting Kimmel Township Taxpayers Association v. Claysburg Kimmel School District, 146 Pa.Cmwlth. 57, 604 A.2d 1149, 1152 (1992)).

6 . Citizens concede that Ondek is controlling but inform the Court that they filed their appeals as a precautionary measure since the Pennsylvania Supreme Court has not yet addressed the jurisdictional issue decided in On-dek. This, of course, in no way diminishes the rule of law announced in Ondek.

7 . Act of May 24, 1945, P.L. 991, added by Act of June 23, 1978, P.L. 556, as amended.

8 . It provides, in relevant part, that “questions relating to an alleged defect in the process of enactment or adoption of any ordinance ... of a political subdivision ... shall be raised by appeal or challenge commenced within 30 days after the intended effective date of the ordinance, resolution, map or similar action.” 42 Pa.C.S. § 5571(c)(5).

9 . This Court remanded Mercurio to consider the residents' third issue, i.e., the project described in the developer's permit application to DEP was so different than that authorized by the TIF plan that a new TIF plan was required before the project could proceed. The trial court rejected the residents' argument that an amendment to the TIF plan was required; the court found no language in the TIF Act requiring such an amendment. We remanded for further proceedings on this issue because it was unclear whether a redeter-mination of the tax increment base was necessary under the TIF Act. Should it be found that the developer in Mercurio lacked the authorization required under the TIF Act, the developer could be enjoined from proceeding with the project.

Citizens contend that in Mercurio we opened the door for their action in equity challenging the legislative enactments. That is simply not the case. The developer was a named defendant in Mercurio and, as would be the case in any TIF dispute, was the party that would be liable for any shortfall in financing. Here, Citizens did not name the developer of Victory Centre in any of their underlying actions. They sue only their elected representatives.

10 . The dissent ignores basic principles of equity. Equity provides remedies where the law has established a right but not an adequate remedy. In fashioning the remedy, however, equity must follow the law. Our Supreme Court has stated:

Even recognizing that a court of equity has broad powers, '(i)t is a mistake to suppose, that a court of equity is amenable to no law, either common or statute, and assumes the rule of an arbitrary legislator in every particular case.’ ... When the rights of a party are clearly established by defined principles of law, equity should not change or unsettle those rights. Equity follows the law.

First Federal Sav. and Loan Ass’n of Lancaster v. Swift, 457 Pa. 206, 210, 321 A.2d 895, 897 (1974) (citations omitted). See also East Hempfield Township v. Brubaker, 828 A.2d 1184, 1188 (Pa.Cmwlth.2003) ("[a] court of equity has no more right than has a court of law to act on its own notion of what is right in a particular case [and] must be guided by the established rules and precedents.”) (citation omitted).

What is absent from the dissent’s analysis is any explanation of what clearly established constitutional, statutory or common law right of Citizens will be vindicated through equitable relief. What the dissent is really attempting to do is to use equity to create a cause of action for citizens to challenge the wisdom of an ordinance or other legislative enactment. Citizens’ “remedy” lies in the ballot box, not in, court.

11 . Citizens challenged the designation of blight in each of their complaints. This claim was only properly lodged against the Township, however, since it was the Board of Supervisors who enacted the ordinance creating the TIF district and in doing so declared the area to be blighted.

12 . This Court’s standard of review of the trial court’s order sustaining preliminary objections in the nature of a demurrer is limited to determining whether the trial court abused its discretion or committed an error of law. Mercurio, 839 A.2d at 1201 n. 5. In ruling on preliminary objections, the court must accept as true all well pled allegations of material fact. Id. A demurrer should be sustained only in cases that are free from doubt and only when it appears with certainty that the law permits no recovery under the allegations set forth. Id.

13 .Citizens' third issue on appeal is closely related to their first two issues. Citizens contend that they were entitled to directly challenge the actions of the individual public officials who voted in favor of the TIF proposal. Citizens acknowledge in their brief to this Court that “[sjince no damages are sought this [issue] is of minor practical importance, except for purposes of affixing responsibility.” Citizens’ Brief at 19. In actuality, this issue has no importance. Regardless of whether Citizens are challenging the actions of the individual representatives of the taxing districts or the taxing districts themselves, we have already determined that Citizens' claims are either not subject to judicial review or were legally insufficient. It is therefore not necessary to "affix responsibility.”