Commentary: Court should honor investment in open space by taxpayers

Last week, the Pennsylvania Supreme Court heard oral argument in the seven-year-long Kardon Park redevelopment litigation. At issue is whether a municipality can sell parkland without court approval.

In this case, the Commonwealth Court ruled that the Borough of Downingtown could sell some portions of a popular and coveted 40-plus-acre park to a developer for high-density residential development without such approval from Orphan's Court. While the facts and the issues of the proposed transaction are both complex and highly disputed, one thing is for sure:

If this aspect of the Commonwealth Court decision is affirmed, the future of municipal efforts to preserve open space and parkland will be in great jeopardy.

Most of the legal wrangling centers on which particular statute the court chooses to apply to the borough's original acquisition and subsequent sale of the various sections of the park. Put simply, there are at least four controlling laws that apply to varying acquisition scenarios, and they do not all harmonize particularly well. Hence, each faction involved in this case has clutched the legislation most suited to its aim, and the advocacy has spewed forth accordingly.

In my opinion, the manner in which a parcel of open space was acquired should not be the driver when deciding whether to sell it for other purposes. In the end, all parkland is funded by taxpayers - whether through outright acquisition, condemnation (which entails payment), or with government grant funding. Even land that is donated is ultimately paid for by taxpayers. Land is costly to maintain, especially parkland, and every protected piece represents a sacrifice in tax revenue.

Given that every taxpayer is essentially an investor in the purchase of open space and that taxpayers choose to continue to make such investments for the benefit of future generations, our statutory framework should be interpreted to respect that long-term investment and protect it from the whims of elected officials. The Pennsylvania Supreme Court agreed with this notion in a 2010 landmark decision.

In Erie Golf Course, the court held that the Deeded and Dedicated Property Act (DDPA) protects the public interest in public properties dedicated to park use and regulates any attempt to remove restrictions on the use of such land. The DDPA should control in the Downingtown case, regardless of how the park parcels were acquired.

I serve on the Board of Commissioners for Radnor Township. Our residents and taxpayers have made an extraordinary commitment to the preservation of open space and parkland, overwhelmingly approving two different open space acquisition bond referenda, one for $10 million and another for $20 million. We have used much of that money to invest in purchasing and protecting many acres of very expensive land.

Our residents made this commitment because they are willing to sacrifice and make payments today in order to ensure the legacy of open space and rural character in our town tomorrow. Now just imagine if our legal landscape changed, and this commitment and sacrifice could be countermanded by a simple majority vote of some future Board of Commissioners. It is hard to imagine future taxpayers ever wanting to take that risk.

I hope the Supreme Court will rule in favor of the sanctity of our taxpayers' trust in the protection of their long-term investment in open space and parkland. If not, our elected officials will face enormous pressure to monetize our previously sacrosanct investments, and the prospect for future investments will be bleak indeed.

Elaine Paul Schaefer, an attorney and a former executive director of the Radnor Conservancy, is serving her second term as Fourth Ward commissioner of Radnor Township. epschaefer@comcast.net