Mon. Jul 26th, 2021

If State College Borough moves forward with its idea to donate parkland to a developer to build affordable housing, it will almost certainly face legal challenges — with at least one expert believing the borough would face “substantial barriers” to a win.

Council is currently considering handing a 99-year lease of Nittany Village Park to a local developer, Progress Development Group, whose apartment building would spill over into between 16{85245cd25b56c80c5b7fbe16195da482b1a2d4d533fd90ff485ef932778890f3} and 33{85245cd25b56c80c5b7fbe16195da482b1a2d4d533fd90ff485ef932778890f3} of the park that’s not quite a full acre. In exchange for the land, PDG would build a four-story, 26-unit affordable housing building at 1306 S. Atherton St. while installing new playground equipment, picnic tables, and more, in addition to maintaining the park.

At least one council member referred to the exchange as a “win-win.” But many residents of the Tusseyview neighborhood are opposed to the move, saying it’s the right idea at the wrong location. “As soon as we lose our parks, they’re gone forever,” resident Dan Brown said.

One thing both sides agree on: If this moves forward, the first obstacle will be getting approval from the courts.

What’s the legal controversy?

At issue is the Pennsylvania Donated or Dedicated Property Act (DDPA), which essentially says a local government has to manage a donated or dedicated park for the original purpose it was donated or dedicated for.

Nittany Village Park was dedicated as a park/playground area in the 1930s and formally donated by 1956, by Phillip D. Jones, president of a local real-estate company.

The only way to change that in instances like this? Through a court order, via the Court of Common Pleas. A borough spokesperson acknowledged that its solicitor made the council aware of that during an executive session, and court precedents — such as a 2002 case involving a cell tower and a public park — bear that out.

Although the law is specific to Pennsylvania, it’s basically an extension of the Public Trust Doctrine that the U.S. Supreme Court first accepted in 1842. That principle can trace its origins all the way back to the Roman Empire and holds that governments may not privatize public trust resources (with exceptions, of course).

So will Nittany Village Park be one of those exceptions?

What do the experts say?

With so many variables at play, no expert was comfortable putting a number on the likelihood the borough might win or lose the case. But Penn State Law Professor Hannah Wiseman, a decorated Yale grad who counts land use regulation among her specialties, believed the borough would face a number of challenges in court.

“I would say it faces substantial barriers, given the precedents and other factors,” she told the CDT.

“I think the arguments of the borough will be that this is a really important public purpose — low-income housing, which it seems a lot of residents agree with. But there are also cases saying no matter how important the public purpose of this proposed private enterprise, if it’s changing the current public purposes of the park, the courts have sometimes found that unacceptable.”

In 2009, the court ruled that Philadelphia could not sell part of Burholme Park — even if the buyer, Fox Chase, intended to build a cancer center. The DDPA “did not allow for a balancing of benefits,” court documents said. If the city could have proved the original use of the parkland property was no longer possible, or if the original use had stopped serving the public interest, the ruling might have been different.

But the court ruled that neither the city nor Fox Chase had proved otherwise.

“Too often, by the way, municipalities don’t explore very many options — because the search costs tend to be high and politicized and born most immediately by the local elected officials themselves — and so they tend to take the deal as it is engineered by the developer,” said Penn State Law Professor Jamison Colburn, who focuses mainly on environmental and natural resource law. “That may or may not be what’s happened here.”

There are similar cases, too. Downington attempted to sell part of Kardon Park, but lost its case before council eventually chose to withdraw from its lawsuit in 2018 after the entire process lasted more than a decade. Even a century ago, the court was consistent in its thinking. In 1915, the state Supreme Court denied Philadelphia the ability to sell public land to the University of Pennsylvania. (Although that ruling technically predated the DDPA, Wiseman said courts tend to cite that opinion in DDPA cases anyway.)

There are always exceptions, Wiseman added. But usually when the court rules in favor of a municipality, it’s because the involved land comes from the Project 70 Land Acquisition and Borrowing Act, when the state issued bonds in coordination with local governments to purchase parkland, reservoirs and the like. In 2012, the state legislature lifted restrictions on selling such land — but such an act has nothing to do with Nittany Village Park, which was donated eight years before that act was even passed.

Still, it’s worth noting the borough would be donating (via lease) and not selling its parkland. And few argue State College isn’t in serious need of affordable housing.

Courts are unpredictable, Wiseman said. But, “especially in the cases where it’s clear the municipal land was supposed to remain public, the courts have rejected attempts to privatize it.”

What comes next?

The issue is not on the agenda for Monday’s council meeting, and it’s unknown exactly when the State College Borough Council will again discuss the matter — but a vote could come as early as July.

If the borough council rejects the proposal, the story likely ends there. If it accepts the proposal, the borough will then need to receive approval from the courts before proceeding.

Tusseyview resident Dan Brown, who publicly brought up the DDPA at last month’s council meeting, said the neighborhood would first have to discuss any sort of potential appeal, if a court ruling went against them. And while he made no promises of fighting such a move in court — he was not eager to spend several years with lawyers — he also couldn’t rule it out at this early point.

“There’s a personal side to to it: We the neighborhood are invested in this because we love the park,” Brown said. “But the larger piece is this is a precedent we don’t want set in the borough either.”

Josh Moyer earned his B.A. in journalism from Penn State and his M.S. from Columbia. He’s been involved in sports and news writing for nearly 20 years. He counts the best athlete he’s ever seen as Tecmo Super Bowl’s Bo Jackson.