Court to City: "Parks Too Precious to Privatize"

Stacey Graham on 02/06/2009

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Philadelphia Orphans’ Court Judge, John W. Herron’s recent decision on the City of Philadelphia’s petition to grant a long-term lease of Burholme Park property to Fox Chase Cancer Center could not be clearer. Despite the economic recession and related financial woes, the City cannot solve its problems by divvying up viable parkland to the highest bidder or to the bidder promising jobs and long-term revenue for the City. Simply put, municipalities do not have the authority to privatize parkland that is actively used for recreation.

In ruling on the City’s petition to lease to Fox Chase nearly 20 acres in the middle of the 65 acre park located in Northeast Philadelphia, Judge Herron breathed new life into the public trust doctrine. In 1915, the Pennsylvania Supreme Court held that the common law public trust doctrine applies when real property has been dedicated to a public purpose and the public has accepted it. Trustees of the Phila Museums v. Trustees of the Univ. of Pa., 252 pa.115, 123-24, 96 A. 123, 125 (1915). Once property has been dedicated for public use, “[t]he city holds, subject to the trusts, in favor of the community and is but the conservator of the title in the soil and has neither power nor authority to sell and convey the same for private purposes.” Id., 251 Pa at 123, 96 A. at 125. Whether such dedicated property may be leased, sold or otherwise transferred requires court approval which scrutinizes the purpose of the charitable trust and whether that purpose has become unlawful, impracticable or wasteful and if so, whether the proposed use of the dedicated property is consistent with the purpose of the trust. The Pennsylvania Supreme Court further held in Bernstein v. Pittsburgh, that for land which has been dedicated for park purposes “the terms of the grant must be narrowly construed and the uses to which the land may be put correspondingly restricted.” 366 Pa. 200, 77 A.2d 452 (1951).

In the case at point, more than a century ago, Robert Ryerss directed a tract of land near Fox Chase in the thirty-fifth ward be used as a public park forever, “the same to be called Burholme Park” and by his will bequeathed the property to the City of Philadelphia. Ex. P-1 June 25, 1895 Will of Robert Ryerss at 3-4. The City accepted the bequest of land by its July 27, 1905 Ordinance, and incorporated into the Ordinance the language of the Will stating that the “donated land was to be used as a park, to be called ‘Burholme Park,’ and to be free for the use and enjoyment of the people forever.” Today Burholme Park is one of the only open spaces in a densely populated area and its popular facilities are “very heavily used on a regular basis by people of all ages” according to the Chief of Staff of the Fairmount Park Commission.

Yet, in an effort to accommodate the expansion of Fox Chase’s cancer research facilities, the City approved a Bill on March 6, 2008 to lease 19.4 acres of the Burholme Park which, through an intricate series of agreements, enabled Fox Chase to construct as many as 18 buildings ranging from 4 to 9 stories in the middle of the park over a five-phase development plan spanning several years. In its petition to the court for approval of the lease, the City stated that “it is no longer practicable or possible, and it does not serve the public interest to continue to use all of Burholme Park for park purposes because the exclusive use will preclude Fox Chase from expanding its campus and may compel Fox Chase to relocate outside the City of Philadelphia.” SCRUB, Save Burholme Park and thirteen individuals challenged the petition and the City’s authority to privatize their park. Recognizing them as beneficiaries of the park land with a personal stake in the outcome, the court granted standing to Philadelphia taxpayers.

After seven days of hearings, the court responded that “[o]ne hundred years of decisional law simply does not recognize such pressures as a raison d’etre for eviscerating our heritage to future generations and our need for recreational space for inner city youth and adult population, many of whom have chosen to live, work and invest in the City, in part, because of the rich environment offered by our public park lands and open spaces.” The court concluded that the public trust doctrine protects every square foot of Burholme Park until it ceases to be a viable and active park.