Judge rejects Downingtown's plan to sell parkland for development

A judge rejected Thursday a Chester County borough's attempt to sell parkland, capping a contentious court battle watched by towns across the state.

In a 25-page opinion, Chester County Court Judge Katherine B.L. Platt said Downingtown had not met its burden to justify the sale of half of Kardon Park, an approximately 40-acre swath of fields, forests, and waterways that has been used for decades by the public, especially its paved walking and biking trail.

"This is a major victory for open space and parkland," said Samuel C. Stretton, the attorney for the Friends of Kardon Park, an advocacy group opposing the 345 homes and 20,000 square feet of commercial space planned for the site. "Parkland has been at risk in this era of budget deficits."

Stretton said he expected the ruling to have consequences beyond Downingtown.

"This should prevent municipalities from selling parkland for short-term economic gains," he said. "Once a park is destroyed, it's gone forever."

The debate about developing public parkland has echoed and stalled in courtrooms across the state. For instance, in December 2008, a Philadelphia judge rejected a bid by the city to lease part of Burholme Park to the Fox Chase Cancer Center for an expansion. The center abandoned the quest in January after losing a Commonwealth Court appeal.

Patrick C. O'Donnell, Downingtown's solicitor, said he did not know whether the ruling would be appealed.

"We haven't had a chance to digest the opinion yet," he said.

O'Donnell said he did not believe the decision would have "a direct impact" on the 70-unit portion of the development to be built in East Caln Township.

The borough, backed by many local business owners, had supported the mixed-use proposal from a partnership of J. Lowe & Associates and Progressive Housing Ventures L.L.C. The borough cited public benefits including remediation of lead- and PCB-tainted soil; an increase of affordable housing; income for cash-strapped Downingtown, including up to $2.3 million for a new fire station and a percentage of home sales; and improvement of Lions Trail.

"The opinion leaves many unanswered questions as to how to deal with a 40-acre contaminated parcel in the center of town and the future financial ramifications to the Downingtown taxpayers," Borough Council President James M. Bruton said. He estimated the potential revenue loss to taxpayers at $7 million to $9 million.

Sarah Peck, one of the developers, said she was "surprised and disappointed" by the ruling, "which apparently has condemned Downingtown Borough to maintain a former dump site for public use in perpetuity at any cost."

The paved pathway connects to the Struble Trail, a popular route along Brandywine Creek in central Chester County. But the park also houses the Victims' Memorial of Chester County, the site of a well-attended annual vigil to remember crime victims.

Long before Kardon Park, a quarry operated at the site. When that closed, the Downingtown Paper Co. and Kardon Industries filled the craters with paper waste and chemical dyes until the early 1960s.

The borough began acquiring parcels of the site in the '60s and '70s for parkland, narrowly averting a Superfund designation in the early 1990s. Instead, the companies and the borough funded an environmental study that produced Department of Environmental Protection clearance for a park.

In January 2000, Bruce Beitler, a DEP officer, included "the caveat that the park remain as it is." About that time, the borough began laying the groundwork for development.

Stretton, who also represented residents in the Fox Chase Cancer Center case, said Ann M. Feldman, who organized the Friends of Kardon Park, deserved praise for "staying the course" under intense criticism.

Feldman won a Borough Council seat on a platform opposing the development.

Asked about borough threats to fence portions of the park if it could not be sold, O'Donnell said access to some areas might need to be reevaluated.

"The fear would be that the ruling would make people feel freer to use other parts off the trail," he said, adding that contamination was most severe in the western wooded areas.

Stretton said restricting areas could generate more legal action.

"That would be an act of retaliation," he said.