Donated or Dedicated Property Act Project 70 Act Eminent Domain Sale of Public Park to Private Developers
In re Petition of the Borough of Downingtown, PICS Case No. 17-1048 (Pa. June 20, 2017) Todd, J. (55 pages).
Donated or Dedicated Property Act restrictions applied to property purchased with Project 70 Act funds that was later dedicated to the public use, and such restrictions could not be eliminated by a Project 70 Act legislative release. Orders of the commonwealth court vacated and reversed.
The parties cross-appealed from the orders of the commonwealth court regarding Downingtown Borough's sale of Kardon Park, a public community park owned and maintained by the borough, to private housing developers, and the grant of easements over parts of the park. The borough created Kardon Park through a series of acquisitions made with Project 70 Act funds as well as through the exercise of its power of eminent domain. By the 1990s the borough sought to sell a portion of the park for commercial development, and obtained releases from Project 70 Act restrictions on northern parcels purchased with Act funds. Developers were the successful bidders, and entered a purchase agreement with the borough for the northern parcels, southern parcels, and the Meisel parcel to construct a mixed-use development. Portions of the northern and Meisel parcels were retained by the borough, which granted developers easements to construct any improvements needed for the development.
Objectors, borough residents who lived near the park, a non-profit they founded with other borough residents and other interested parties, and an adjacent metal fabrication company filed the present action to prohibit the borough from carrying out the planned sale. The borough filed a petition seeking approval of the sale.
The orphans' court denied the borough's petition, first ruling that under the Donated or Dedicated Property Act it had ultimate authority to determine whether park was dedicated to public use and whether the borough met the criteria to sell park property namely, whether its original use was no longer practical or the park had ceased to serve the public interest. The orphans' court ruled that the whole park was dedicated to public use, and that its public use was still practical and served the public interest, such that the borough lacked authority under DDPA to sell park property.
Borough and developers appealed to the commonwealth court, which reversed the orphans' court, ruling that the Project 70 Act and the Eminent Domain Code may have authorized the borough to dispose of the northern and southern parcels, respectively, and remanded for reconsideration by the orphans' court.