Fox Chase loses appeal to use Burholme Park

Fox Chase Cancer Center yesterday lost its appeal to use 19.4 acres of neighboring Burholme Park for a $1 billion expansion of its hospital.

Commonwealth Court upheld Orphans' Court Judge John W. Herron's ruling last December that Fox Chase is not entitled to lease a portion of the 65-acre public park.

"While we understand that Fox Chase's inability to expand at its present location may have negative economic consequences, this is not a consideration," wrote Judge Renee Cohn Jubelirer.

The City of Philadelphia has a "duty" to continue to hold "the property in trust for its originally intended use as parkland."

The court noted the park "continues to be actively used by the public," and remains "popular and important" in the Fairmount Park system. And, the endowment in the trust account left to the city by Robert W. Ryerss in his will dated June 25, 1889, "is sufficient to maintain the park."

The law does not permit a balancing of interests: whether one use would better serve the public interest than another, the court said. If it did, "every donated park in the Commonwealth would be at risk of being leased so that cash-strapped municipalities could balance their budgets."

Fox Chase said in a statement, "While not the news we hoped for, we respect the Commonwealth Court's decision."

"The center at this point is evaluating all reasonable options for expansion," said spokesman Timothy Spreitzer. "It's too early to rule out what is, or isn't, on the table," he said. "Leadership is going to evaluate the court's ruling. It's too early in the process to say whether we will appeal."

Fox Chase, on 17 acres next to Burholme Park since 1949, says it urgently needs to expand to keep pace with cancer care, research, and the burgeoning increase in patients, but it has said it will look elsewhere if the city said no.

The city, concerned that Fox Chase may relocate outside Philadelphia - taking with it thousands of jobs and decreasing the city's tax base - agreed in March 2008 to give Fox Chase an 80-year lease.

Herron in December 2008 rejected the city's request to lease the land.

Herron ruled the park was protected by the "common law public trust doctrine." Because the land was dedicated and accepted for public use it cannot be subdivided so long as it "continues to be used for the purpose for which it was originally dedicated."

Ryerss donated his farm and mansion as a public park "for the use and enjoyment of the people forever."