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.