Commonwealth Court Considers Eminent Domain and Act 70

On August 3, the Commonwealth Court handed down a decision in Borough of Downingtown v. Friends of Kardon Park, No. 2392 C. D. 2010, that may prolong the legal wrangling over Kardon Park, a 50-acre area of parkland that occupies parts of Downingtown Borough and East Caln Township in Chester County. The opinion reversed and remanded an October 2010 decision by the Chester County Orphans’ Court that prohibited any development in Kardon Park. This case is part of an ongoing dispute that includes the Commonwealth Court decision in Feldman v. Board of Supervisors of East Caln Township, No. 1370 C.D. 2011, decided adversely to the East Caln Township Board of Supervisors and the same developers July 12. It is also part of the ongoing clarification of the Donated or Dedicated Property Act 53 P. S. 3336-88 that Pennsylvania appellate courts have recently addressed in In re Estate of Ryerss, 987 A.2d 231 (Pa Cmmwlth 2010), and In re Erie Golf Course, 992 A.2d 75 (Pa. 2010). Although the preservation versus development issues are of great interest, it is the statutory basis under which public lands may or may not be subject to sale for private development that is the focus of this article. This case serves as a reminder that the method of acquisition can be determinative of when and under what circumstances public parks may be sold to developers and which statutory law will control.

The Orphans’ Court was asked to approve Downingtown Borough’s petition for approval of sale of real property to two developers of 40.5 acres known as Kardon Park. The developers envision the construction of 305 residential units, 40 “live-over” rentals and 20,000 square feet of commercial space. The first parcel of 7.6 acres was purchased by the borough in 1962. This parcel is subject to an easement in favor of the developers but is exempt from development. The second and third parcels, consisting of approximately 21 acres, were purchased by Act 70 funds in two separate transactions in 1968, pursuant to 72 P.S. 3946, which created a fund in 1964 for the state to issue bonds to purchase lands for public use and to coordinate those purchases with local governments. The final two parcels, totaling 11.7 acres, were condemned by the borough in 1974 and 1977. The plan envisions part of this parcel to be developed and part to be retained as parkland. All of the parcels, except the 7.6 acres purchased in 1962, were designated for recreational, conservational and historical purposes when purchased.