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CONVEYANCE 1.2 ACRES BANGOR MEMORIAL PARK TO BANGOR AREA SCHOOL DISTRICT. APPEAL BOROUGH BANGOR (12/13/89)

decided: December 13, 1989.

IN RE CONVEYANCE OF 1.2 ACRES OF BANGOR MEMORIAL PARK TO BANGOR AREA SCHOOL DISTRICT. APPEAL OF THE BOROUGH OF BANGOR


Appeal from Common Pleas Court, Northampton County; Honorable William F. Moran, Judge.

COUNSEL

Alan B. McFall, Peter C. Layman, Cassebaum, McFall & Molnar, P.C., Bangor, for appellant.

Preston W. Moritz, James L. Zulick, Nazareth, and David J. Ceraul, Bangor, Peters, Moritz, Peischl & Zulick, Nazareth, for appellee.

McGinley and Smith, JJ., and Narick, Senior Judge.

Author: Mcginley

[ 130 Pa. Commw. Page 144]

This is an appeal by the Borough of Bangor (Borough) from an order of the Court of Common Pleas of Northampton County (Orphans' Court) denying the Borough's petition to seek approval of the transfer of 1.2 acres of Bangor Memorial Park (Park) to the Bangor Area School District (School District) for the construction of a new elementary school.

On June 5, 1950, the Borough of Bangor Council (Council) enacted Borough Ordinance 416 and officially dedicated the Park as a memorial to all veterans of the wars of the United States. The Park consists of approximately 34.35 acres. West of South Tenth Street lies the majority of the park including a football field, swimming pool, kiddie train, snack bar, fieldhouse and two basketball courts. Directly across

[ 130 Pa. Commw. Page 145]

South Tenth Street to the east is a 1.2 acre tract of parkland.*fn1 It is this parcel the Borough seeks to convey.

In the Spring of 1987, the School District considered closing the elementary school and constructing a new one in the Borough or elsewhere. From March 2, 1987, through July 11, 1988, twelve public meetings were held to discuss the location for the proposed elementary school. On December 7, 1987, the Council voted to convey the 1.2 acre tract to the School District for the purpose of building a new elementary school. On December 21, 1987, the School District voted to accept the 1.2 acre tract.

On October 3, 1988, the Borough petitioned the Orphans' Court for approval of the conveyance pursuant to Section 4 of the Act of December 15, 1959, P.L. 1772, 53 P.S. ยง 3384 (Act).*fn2 The Borough proposed to replace the 1.2 acre tract with a 3.6 acre tract of land owned by the Borough. The taxpayers of the Borough (Appellees) opposed the conveyance and hearings were held on October 21, 1988, and October 31, 1988.*fn3 On December 8, 1988, the Orphans' Court denied the conveyance and dismissed the Borough's petition concluding that the Act did not apply because there had been a formal dedication and acceptance by the Borough to use the land as a public park.

[ 130 Pa. Commw. Page 146]

The Orphans' Court determined that the public trust doctrine as set forth in Trustees of the Philadelphia Museum v. Trustees of the University of Pennsylvania, 251 Pa. 115, 96 A. 123 (1915) was not satisfied because the intended use would be for a school or educational use, not for use as a park. The Orphans' Court also concluded that under the Act the proposed conveyance would be improper because the Borough failed to establish ...


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