Pa. high court ruling preserves parkland, limits town power to sell

In a victory for preservationists, the Pennsylvania Supreme Court has ruled that municipalities cannot sell public parkland or allow developers to use public land for private easements without court approval and public participation.

The decision halts a Chester County borough's plan to sell 28 acres of parkland to a developer for the construction of retail space and about 300 housing units. Borough officials have sought to develop the land for more than two decades.

In its ruling Tuesday, the high court said the Donated or Dedicated Property Act requires court review of all public park sales even when a municipality removes deed restrictions on the land, as the legislature did in this instance. The act ensures public property will not be sold without careful consideration "or for purposes that do not serve a true public benefit," the justices said in a unanimous decision.

Municipalities have to prove in court that public use of land is no longer practical and allow members of the public to challenge any plans to sell it.

"Grandchildren of ours will be relying on this when municipalities try to sell their parks," said H. Fintan McHugh, an attorney who represents companies next to the park and who challenged the borough's plans. "It's not just a pro-parks decision, but it's a pro-public decision."

Sarah Peck, president and owner of Progressive Housing Ventures, the would-be developer, said Wednesday she was reviewing the decision. "We're considering all of our options," she said in a statement.

Borough officials did not respond to requests for comment Wednesday.

During oral arguments before the high court in December, McHugh and co-counsel Samuel Stretton, who represented a group of residents, said that if municipalities were permitted to sell parkland without mandated court review, cash-strapped towns and boroughs would sell off all their parks.

Lawyers for the developers said that at least 20 acres of Kardon Park, which crosses into East Caln Township, Chester County, would remain parkland. Downingtown Borough officials had said that in addition to onetime gains — a projected $3 million — selling pieces of the roughly 48-acre Kardon Park would generate at least $100,000 annually in tax revenue and stimulate retail and residential growth.

However, Commonwealth Court decided Downingtown needed approval from Orphans' Court to sell parcels in the park.

In addition to the Supreme Court's ruling on sales, it decided courts must approve private development easements before municipalities allow them on public parks. Companies wanting to construct cell towers, billboards, pipelines, and other structures often use such easements.

A lower court will determine the fate of Downingtown officials' plan to sell more than 11 acres the borough acquired through condemnation. Borough officials argue the state's Eminent Domain Code allows them to sell the land. The Supreme Court sent the issue back to Commonwealth Court for review.

Andrew Loza, executive director of the Pennsylvania Land Trust Association, said the Supreme Court's ruling on the sales of parkland and easements on it supports the group's belief that municipalities do not have the power to do whatever they want with their parkland.

"They hold parks in trust for the parks' true owners, which are the public," Loza said. "It's a great day for Pennsylvania parks."