Tuesday, December 09, 2008

Judge Saves Burholme Park from Hospital

This just in: Orphans Court Judge John W. Herron Jr. has just issued an opinion denying the city the right to sell 20 acres of Burholme Park to Fox Chase Cancer Center. The park remains a park. " The public trust doctrine, the appropriate rule of law applied in these circumstances, leaves no doubt and requires that the petition for court approval to lease Burholme Park be denied," Herron writes. Read the decision here and my recent column here. More to come.

After a quick read of the decision, here are some highlights. (Sorry, other stories and deadlines demand our attention today.)

-Judge Herron concluded that leasing the 19.4 acres of Burholme Park land to the cancer hospital would violate the longstanding public trust doctrine. He writes: "There was no evidence whatsoever presented during the seven days of
hearing that Burholme Park has ceased to fulfill its purpose as a vibrant public park. On the contrary, even proponents of the Fox Chase sub-sublease attested to Burholme Park’s vitality and importance within the Fairmount Park System."

His strongly worded conclusion lays it out directly."Public parks are protected by a common law rule of law known as the public trust doctrine which has been enshrined in Pennsylvania law since the early 1900’s. The one exception allowing for the alienation of such lands concerns nonviable park land which all parties agree does not apply to Burholme Park. Simply stated, so long as a community or neighborhood actively uses dedicated park land, the City is required to hold such land
in trust for their use, is legally stopped from divesting such land and is required to maintain these open spaces as public parks.

One thing I find interesting in the decision is the judge's implicit criticism of the Nutter Administration's deal-making efforts and of Councilman Brian O'Neill's use of councilmanic privilege to obtain $4 million in spending money for his district from Fox Chase as compensation. Judge Herrron goes to great length to say there was no actual misconduct by any officials, yet he clearly was disturbed that the city obtained no property appraisals before he agreeing to lease the land to the hospital.

"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 and, in doing o, bargaining away the City’s fiduciary duty to preserve actively used park land held in trust for the public," the judge writes.

No one has ever questioned Fox Chase's need for more space, and the judge similarly acknowledges the hospital has legitimate growth needs. But he believes that alone isn't reason to build on a large section of the park. Even though two-thirds of the land would remain open, he observes that he surviving park would be severely compromised. "The once pastoral unity of the park would be bisected by up to 18 buildings as high as nine stories," he writes.

"The planned expansion in five stages over many years would result in the construction of as many as 18 large buildings between 4 and 9 stories high through the very center of the lush park, uprooting old growth trees, destroying vital recreational areas and irrevocably altering the unique character of this singularly beautiful park land and open space....Barry Bessler, chief of staff of the Fairmount Park Commission for the past 15 years, testified that Burholme Park is “very heavily used on a regular basis” by people of all ages."

Thanks to Judge Herron it may remain that way.

19 Comments:

Anonymous Anonymous said...

Finally a voice of reason in this age of trust-busting Philadelphia land grabs! Burholme may not be the nicest pocket of the city, but this is one hell of a park that should be preserved for the people. Keep sledding kids!

10:42 AM  
Anonymous Anonymous said...

Inga: Spell-checking your comments (e.g., "priviledge") and fact-checking your facts (e.g., it's 18 buildings, not 181) would lend your column greater validity.

1:27 PM  
Anonymous Anonymous said...

to the first Anonymous - you are ill-informed - the sledding hill was never ever in jeopardy. Hope you are never affected by cancer!

4:44 PM  
Anonymous State Rep Mark Cohen said...

Judge Herron's wise, thoughtful, and well documented decision is a tremendous victory for community interests over intense political and economic interests.

I commend Inga Saffron for her well thought out recently published essay questioning the wisdom of taking the park land, and her continuing interest in this issue on this blog.

Judge Herron recognizes the difference between a permanent park and a temporary land bank. His decision should be required reading for all current and future mayors and city council members.

Parks are a precious heritage from the past that we cannot take for granted for the future. It is wonderful that the Court of Common Pleas was able to produce an effective champion for the long range interests of Philadelphia when the Mayor and City Council were not able to do so.

6:53 PM  
Anonymous Anonymous said...

Thank you, Judge Herron.

Representative Cohen, thank you for your comments. I greatly respect you for taking a public stand on the recent parks debacle in Philadelphia (Vote yes to sell parks).

8:12 PM  
Anonymous Anonymous said...

Thank you Judge Herron. Finally someone with the courage to stop the transaction-based approach to Philadelphia governance and force these short-sighted elected officials to honor not just the law and an unambiguous will, but the social contract they have with the citizens who elected them.

10:56 PM  
Anonymous Anonymous said...

I like parks, therefore Cancer is awesome!

9:46 AM  
Anonymous Anonymous said...

As usual, Inga ignores facts that are contrary to the article that she was predisposed to write. Judge Herron's decision also fails to take into account the "sale" of park lands via lease and/or concession for many decades by the Fairmount Park Commission itself. If Judge Herron's decision is fully carried out, then the leased driving range must go, the Northeast Optimists building must go, and any other structure that is not the Ryerrs Mansion. The Fairmount Park Commission has robbed the citizens of Philadelphia for decades by ceding control of many of its treasures to the various "Friends" groups. FPC is elitist and deserves to go.

9:59 AM  
Anonymous Anonymous said...

So a privately run Driving Range is now "public parkland" ?

No wonder business leaves the city

11:41 AM  
Anonymous Anonymous said...

In defense that Inga is not ignoring facts, I'm rather annoyed that someone is already misrepresenting the distinction between a golf concession and an office building. Contrary to what is argued above, the court opinion specifically addresses the issue about a golf lease: the suggestion that this issues was not addressed in the opinion is plainly false and misleading. For decades, courts have upheld concessions stands, driving ranges, or open air concert halls as being Consistent with park use; while for decades, courts have denied requests to put fire houses, offices or other clearly non-recreational uses on public parklands.

2:15 PM  
Anonymous Anonymous said...

stepping away from the intention of the donor of the park....

Would you rather have a park or an entity providing jobs??? If FCCC chooses to leave the area,how many small businesses will go out of business or lose signifcant income?

2:29 PM  
Anonymous Anonymous said...

Thank you, Judge Herron, and may your decision stand! Although I live elsewhere in the Northeast, I am a frequent user of the park, and have had family members treated at FCCC. Guess what--my family members succumbed to the disease, but at least the park is still there to soothe my soul. Don't kid yourselves, FCCC is not a completely altruistic entity, nor is any other research center--they are all competing for research dollars. It's all about the money and the reputation. Part of their mission is "to reduce the burden of human cancer"--they don't mention curing it. And in case anyone missed this, even before Judge Herron's decision, FCCC was already advertising on the radio about their NEW treatment center in Bucks County. According to the ad, this was opened because many of their patients don't want to travel to Philadelphia! So much for their objection to having multiple sites. Wonder what FCCC's long-term plan really is?

2:53 PM  
Anonymous Anonymous said...

The park holds special memories for me.

3:07 PM  
Anonymous Anonymous said...

fwiw, they don't want to build there anyway, and with the economy the way it is,where would all this $$$$$ come from to build it???

8:58 PM  
Anonymous Jason, West Chester said...

Aren't there LOADS of other locations in the City where Fox Chase could expand? Instead of destroying park land, how about picking an abandoned/gutted site that would actually BENEFIT from being redeveloped for Fox Chase's good cause?

Fox Chase could fight cancer 2 ways: by expanding AND by cleaning up a brownfield somewhere else in the city. And they should stay in the city; please don't contribute to suburban sprawl by developing farm/forest land out here in the burbs.

10:19 AM  
Anonymous Anonymous said...

The 4 million to O'Neill was to get his "approval" of proposed expansion...Why isn't there an inquiry into this..He was agianst the expansion until the dollar figure was reached..What seperates him from the Illinois governor?

11:01 AM  
Anonymous Anonymous said...

Thank you FCCC for all you have done for the Fox Chase Community.

Thank you Judge Herron for chasing away the only group that would have saved this community and the park; by the way your Judge Herron am I going to be forced out of my house because I live on LAND that was part of the Ryers Estate? The hospital was going to only USE the section of park that No ONE uses! I should know because I walk though this park EVERYDAY for that LAST 30 year. The section that was to remain is STILL going to be there after FCCC expands and would have been a much better place because FCCC was going to take care of it for the length of the lease! Wake people the community of Fox Chase and Burholme can not afford for FCCC to pack up and move!

6:36 PM  
Anonymous Anonymous said...

Like most cancer centers, Fox chase is in the BUSINESS of Cancer: they have no motivation to cure cancer, but to profit from it. They do not need to take public land to expand on. They should focus on making people well, and if they were truly interested in the well being of our city, develop empty land and create jobs in the city where there is plenty of vacant land and opportunity to build.

11:01 AM  
Anonymous Anonymous said...

Thank you Judge Herron and Representative Cohen for not taking the easy road. The bullies of FCCC will not get their offices on the hill overlooking center city. They will continue to collect big research money. Just like everyone else hear, we have all lost a dear friend or relative to cancer. But do you really believe they truly want to CURE this disease? Then what would the researchers do? Treat patients?

9:28 PM  

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