Orphans Court blocks Fox Chase's use of park

Fox Chase Cancer Center cannot expand into neighboring Burholme Park because Pennsylvania law protects "every square foot" of the park, a judge ruled yesterday.

In a 61-page opinion, Philadelphia Orphans Court Judge John W. Herron decided, in a rancorous five-year-old debate, that internationally recognized Fox Chase cannot use 19.4 acres of the 65-acre city park in a long-term lease to expand its campus.

Herron said that public parks were protected by a common law rule, known as the "public trust doctrine," that has been part of Pennsylvania law since the early 1900s.

"Simply stated, so long as a community or neighborhood actively uses dedicated parkland, the city is required to hold such land in trust for their use," the judge wrote.

Fox Chase swiftly announced it would appeal. "We are certainly disappointed in the court's decision, and we plan to appeal," said spokesman Tim Spreitzer. "We've argued all along we believe this expansion will create thousands of jobs, expand Philadelphia's tax base, and keep Fox Chase at the forefront of cancer research."

"We are going to evaluate and pursue any reasonable option for expansion," Spreitzer said. He declined to comment on whether the center might leave the city if it cannot build in the park.

More than two dozen park neighbors crowded into the Orphans Court waiting room to get the ruling. After learning the decision, some went into the hallway to shout their joy.

"I am so thrilled," said Jean Gavin, who walks her dog in Burholme Park, which was bequeathed to the city more than 100 years ago. "We are so glad we were able to save our park."

Fox Chase wanted an 80-year lease for a $1 billion expansion over 25 years that would create more than 4,000 jobs, proponents said.

Plans called for construction of "as many as 18 large buildings between four and nine stories high through the very center of the lush park," Herron wrote. Trees would be uprooted, and vital recreational areas destroyed, "irrevocably altering the unique character of this singularly beautiful parkland and open space."

Mayor Nutter, City Council, and the Fairmount Park Commission had approved the park lease.

Nutter spokesman Doug Oliver said that the mayor still supported Fox Chase's using the park but that he was willing to work with the center to locate other land or facilities in the city.

"The decision could have a devastating impact" on Fox Chase's expansion efforts, Oliver said, adding that the administration would "do everything we can to insure Fox Chase's continued presence in Philadelphia."

Fox Chase said it urgently needed a new hospital to keep pace with cancer care, research, and the burgeoning increase in patients. But it has said it would look elsewhere, if the city said no. It is considering a second campus in Delaware.

Herron and the Orphans Court were asked by the city to break the will of philanthropist Robert Waln Ryerss, who in 1895 donated his farm and mansion as a park for "the use and enjoyment of the people forever."

In 1905, upon the death of Ryerss' widow, Mary, city solicitor George Wharton Pepper advised the park commission to protect Burholme Park in perpetuity for citizens of Philadelphia.

City Council voted last March to give Fox Chase an 80-year lease. Nutter signed the bill a few days later. Fox Chase agreed to pay the city $12.25 million. Of that, $4 million was earmarked for Councilman Brian J. O'Neill's district for improvements in existing facilities.

"There is no evidence of government bad faith, fraud or abuse of power," the judge wrote. "However, there is evidence of capricious and arbitrary conduct in the last-minute drafting" of the Fox Chase lease, pertaining to the $4 million payment for O'Neill's district. "The fault lies with the city and not with Fox Chase.

"While all public officials involved appear to have acted responsibly, the result of the negotiations reflect a desperate effort to contrive a way to accommodate Fox Chase's valid needs for expansion land."

In doing so, Herron said, the city bargained away its "fiduciary duty to preserve actively used parkland held in trust for the public."

The judge also noted that the lease negotiations began with the goal of finding land to swap. But when no land was found acceptable to O'Neill in his district, the councilman "succeeded in shifting $4 million in Fox Chase's money to capital improvements in his 10th councilmanic district," thwarting years of negotiations, Herron wrote. O'Neill did not return calls seeking comment on the ruling.

In March 2005, the Fairmount Park Commission voted, 11-2, to lease the parkland. Two commissioners, E. Harris Baum and Phillip Price, both lawyers, voted against the lease. Baum noted then that the commission did not seek a formal opinion from the city solicitor's office before the vote.

Price remarked at the time that it was the first time in the park commission's 150 years that parkland was transferred against someone's stated wishes in a will.

"To me, it is a very clear issue," he said in 2005. "Our mission as a park commission is to protect and preserve parkland. This will made a gift of parkland for the benefit of the citizens forever. Both City Council and the city solicitor, at the time, expressly affirmed that will."

Ryerss also established an endowment to maintain the parkland and the house, which is a museum and library, Price said. "I see no reason to change it."

Lawyer Samuel Stretton, representing neighbors wanting to save the park, said the judge accepted his arguments on the public trust doctrine, a legal principle that prohibits "selling parkland that has been dedicated to the city and is actively used."

The city maintained it had an "inalienable property right" to sell or lease the park. Stretton said the ruling "has far-reaching ramifications because this whole area of the law has been in flux. Judge Herron pretty well cleared it up."