Public Parks in Peril:  Cities Selling Land to Help Balance Budgets
by Stacey Graham
The Philadelphia Lawyer, Spring 2010

With the recent dissolution of the Fairmount Park Commission, the future of Philadelphia's park system is uncertain. As pointed out in an Inquirer editorial: Park's Close Call, the protective buffer of veto power long held by the Park Commission is being replaced by a mayoral appointed "advisory" commission with no such power.

A majority vote in council could result in the loss of parkland. Courts however must approve dedicated parkland transactions and the public trust doctrine has long protected active parkland from private interests.

Last Fall, SCRUB successfully represented neighbors and users of Burholme Park who were granted standing to intervene in the City's Petition to lease the park to Fox Chase for expansion. Orphans' Court Judge John Herron denied the City and Fox Chase applying the public trust doctrine as the standard of review in deciding this case.

The public trust doctrine, enshrined in Pennsylvania since the early 1900's, is the rule of law requiring that the City "maintain Burholme Park as a park so long as it remains an active park." Judge Herron wrote that there was no evidence presented during the seven days of testimony that BurholmePark has ceased to fulfill its purpose as a vibrant public park.

Fox Chase Cancer Center had proposed that as many as 18 buildings could be built through the very center of the lush park with heights up to nine stories. Judge Herron wrote that the development plan ,"would alter, change and diminish Burholme Park forever" and that "the scope and the proposed construction is inconsistent with park purposes."

In closing, Judge Herron wrote:
"so long as a community or neighborhood actively uses dedicated park land, the City is required to hold such land in trust for their use, is legally estopped from divesting such land and is required to maintain these open spaces as public parks."

In its May 21, 2009 Reply Brief, the City Law Department dismissed the Public Trust Doctrine. The City wants to:

"free up land for its best possible use, always done with the public interest in mind and subject to judicial review, but with court deference to the views of the municipal legislature." (Page 6);

"dedication of the land to park use back in 1905 and 1915 should not freeze its use for higher and better purposes, in light of current practical realities,and the judgement of today's City Council. The DDPA [Donated and Dediated Property Act] was enacted precisely to override a calcified view of property law." (Page 6).

A Panel of three Commonwealth Judges will choose between the two: i.e. preserving donated parkland that belongs to the people "to be used as a park forever" according to the will of the donor OR opening the door to a new interpretation of the law that will allow dedicated and active parkland to be sold, leased, or given away to private interests for non-recreational use and development.

Commonwealth Court Hearing will be held:
Monday, June 8, 2009 at 1:00pm
Court Room #2 Ninth Floor,
Widener Building,
1339 Chestnut Street

Remember to bring I.D. to pass through security. and If possible, sit on the right side of the courtroom.

Please attend this historic hearing that will impact the future of Philadelphia parkland.

Be the Public Voice for Public Space!

For more information, read:

City Law Department Reply Brief

Appellees' Brief

Fox Chase's Brief

Read Judge Herron's Opinion

Read Judge Herron's Ruling Granting Taxpayer Standing to Neighborhood Residents

Thanks to your support and outcry at the proposed City Council Bill allowing non-recreational, private uses on public parkland, Councilwoman Krajewski has pulled the Bill from City Council!

Early Tuesday afternoon at the Philadelphia City Planning Commission meeting, the Executive Director of the Planning Commission, Alan Greenberger announced that the Bill, referred to as Bill No. 090380, was pulled from the City Council calendar and therefore would not be considered by the Planning Commission.

SCRUB will continue to follow this issue and other issues affecting our public space and keep you informed.

Thanks again to all who contacted their City Council members and the Planning Commission.

Click here to read the Inquirer's Article on the Proposed Bill.

A seriously mind-boggling piece of legislation (see full text below) was introduced last Thursday, May 7, 2009 in City Council proposing the following new uses on parcels of public land zoned recreational:

• Catering Facilities, including accessory live entertainment and dancing;
• Conference centers;
• Detached single-family dwellings;
• Meeting facilities;
• Museums; or
• Public or private parking lots.

We are all aware of the City's serious budget deficit and the understandable preoccupation of the Mayor and City Council to find additional revenue sources. However, once any of the proposed uses are built on public land, our park land will be gone forever.

Fairmount Park is the nation's largest urban park. It is a source of pride among citizens of Philadelphia and it should be protected and preserved for all future Philadelphians.

Please tell your friends about Bill No. 090380 and sign up for updates from SCRUB!

Click here to read the full text of Bill No. 090380.

A King's Bench Appeal is a special request for the high court to accept jurisdiction over an appeal rather than having to go through the lower court appeal process. Fox Chase Cancer Center filed appeals to both the Supreme Court and the Commonwealth Court challenging the decision of Orphans' Court Judge John Herron, denying a request to allow 19.4 acres of dedicated parkland to be used for private development. The Court ruled that under the Public Trust Doctrine, Burholme Park, must remain a park.

According to an article appearing in the Daily News a spokesman for Fox Chase stated that the administration is exploring options for expansion, including building within their own 14.5 acre campus. The Supreme Court's denial for special jurisdiction does not impact Fox Chase Cancer Center's earlier appeal filed to the Commonwealth Court. The Court has ordered attorneys representing Fox Chase to submit their brief with a copy of the reproduced record. Attorney Samuel C. Stretton, representing the neighbors and users of the Park, will submit a brief 30 days later.

Herron's Opinion

Herron grants standing to community groups