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In re Estate of Ryerss

December 16, 2009


The opinion of the court was delivered by: Judge Cohn Jubelirer

Submitted: October 14, 2009



The City of Philadelphia (City) and Fox Chase Cancer Center (Fox Chase) (together, Appellants) appeal from the order of the Orphans' Court Division of the Philadelphia Court of Common Pleas (orphans' court), which denied their Petition for Authorization to Lease Real Property (Petition). Through the Petition, Appellants sought authorization for the City to discontinue using 19.4 acres (the Property) of Burholme Park (the Park) as parkland and to lease it to Fox Chase for the expansion of its facilities. In denying the Petition, the orphans' court declined to apply the act commonly known as the Donated or Dedicated Property Act (DDPA)*fn1 and, instead, applied the public trust doctrine and the act commonly known as the Inalienable Property Act.*fn2 On appeal, Appellants argue that the orphans' court erred by failing to grant their Petition under the DDPA. Alternatively, Appellants argue that even if the Inalienable Property Act is the more applicable statute, the orphans' court erred in failing to grant their Petition under that statute.

I. Facts and Procedural Posture

A. The Park

The Park consists of approximately 65 acres of land located in a densely populated residential area of Northeast Philadelphia. (Orphans' Ct. Op. at 1, 8.)*fn3 The Park is part of the City's Fairmount Park system and, as such, is managed and maintained by the Fairmount Park Commission (Commission). (Orphans' Ct. Op. at 8.) The Park offers numerous attractions, including a museum, athletic fields, picnic areas, a playground, walking trails, a miniature golf course, a golf driving range, and batting cages. (Orphans' Ct. Op. at 9.) The Park also offers visitors a view of the Center City skyline near the Ryerss Mansion. (Orphans' Ct. Op. at 9.) The Park is actively used by the public and by many schools and local youth organizations. (Orphans' Ct. Op. at 9.)

Most of the land that comprises the Park consists of property (including a portion of a farm and a house) which was devised to the City by Robert W. Ryerss in a will dated June 25, 1889. (Orphans' Ct. Op. at 5.) The will directed that the land should be used "as a Public Park . . . to be called 'Burholme Park'" and that it is "to be for the use and enjoyment of the people forever." (Ryerss' Will at 3-4, Appellants' Ex. 1; R.R. Vol. 2 at 1092a-93a.) The will also directed that the house should be "used as a Library and Museum Free to the Public." (Ryerss' Will at 4; R.R. Vol. 2 at 1093a.) The will further directed that, upon Ryerss' death, both the land and the house were to pass to Ryerss' widow to be used by her during her lifetime, before passing to the City.*fn4 (Ryerss' Will at 1, 3; R.R. Vol. 2 at 1090a, 1092a.) Additionally, Ryerss provided a monetary endowment to the City for the purpose of maintaining the Park and the Library/Museum. (Ryerss' Will at 4; R.R. Vol. 2 at 1093a.) After Ryerss' death, his widow, Mary A. Ryerss Bawn, donated her life estate in the land and the house to the City and asked the City to take possession of the same. (Orphans' Ct. Op. at 6.) On July 27, 1905, the City enacted an ordinance officially accepting Ryerss' devise of, and Ryerss Bawn's conveyance of her life estate in, the land and the house. (Orphans' Ct. Op. at 6.) The ordinance specifically incorporated the language from Ryerss' will indicating that the donated land "be used as a park," that it "be called 'Burholme Park,'" and that it "be free for the use and enjoyment of the people forever." (July 27, 1905 Ordinance at 181; R.R. Vol. 2 at 1101a.) Subsequently, by ordinance dated July 16, 1915, the City designated additional land, comprising approximately 21 acres, to be made part of the Park. (Orphans' Ct. Op. at 7.)

B. Fox Chase

Fox Chase is a top-ranked, "comprehensive cancer center engaged in basic science, clinical trial research, translational research and the development of new therapies to offer patients a variety of treatment options." (Orphans' Ct. Op. at 10.) Fox Chase currently has a seventeen acre campus located "in Northeast Philadelphia, directly north of [the] Park." (Orphans' Ct. Op. at 10.) Fox Chase has operated at that location since 1949. (Orphans' Ct. Op. at 10.) In 2002, Fox Chase "began focusing on long-term planning to meet future patient needs and to assure that the center could maintain its role as an outstanding comprehensive cancer center." (Orphans' Ct. Op. at 11.) Fox Chase determined that it was necessary to expand the size of its campus and expressed a desire to do so at its current site. (Orphans' Ct. Op. at 12.) Fox Chase prefers to have its research and treatment work occur at one location. (Orphans' Ct. Op. at 12-13.) Fox Chase believes that this unified campus approach, which allows for more interaction between scientists, researchers, and trialists, is vital to its continuing success in the future. (Orphans' Ct. Op. at 12-13.) Fox Chase does not own sufficient land at its current site to expand its facilities. (Orphans' Ct. Op. at 12-13.) Therefore, in order to be able to expand its facilities at its current site, Fox Chase would need to purchase or lease adjacent land.

C. Agreement to Lease 19.4 Acres of the Park to Fox Chase

In 2004, Fox Chase "approached the . . . Commission with the possibility of [purchasing and] expanding into 39 acres of [the] Park." (Orphans' Ct. Op. at 13.) The Commission rejected Fox Chase's initial proposal. (Orphans' Ct. Op. at 13.) However, following negotiations, the parties proposed that Fox Chase could expand into the Property in five phases and that Fox Chase could lease, rather than buy, the Property from the City. (Orphans' Ct. Op. at 15-16.)

Under the terms of the Ground Sub-sublease,*fn5 Fox Chase agreed to pay $8.25 million to the Fairmount Park Conservancy (Conservancy). (Articles and 3.1 of the Ground Sub-sublease, Appellants' Ex. 13C; R.R. Vol. 2 at 1176a-77a, 1181a-82a.) Of that amount, $1.25 million is to be used for maintaining and improving the Park. (Article 3.5 of the Ground Sub-sublease; R.R. Vol. 2 at 1182a.) The parties also agreed that, in lieu of finding replacement land,*fn6 Fox Chase would pay an additional $4 million "to the City for deposit in an account dedicated to 'Improvements to Existing Facilities' in the 10th City Council District, with first priority given to park land and open space, otherwise for other public purposes ('ITEF Funds')." (Article 26.1 of the Ground Sub-sublease; R.R. Vol. 2 at 1216a.) Fox Chase also agreed to pay $500,000 to the Conservancy as additional consideration. (Article 26.1 of the Ground Sub-sublease; R.R. Vol. 2 at 1216a.) The lease period of the Ground Sub-sublease is 80 years, with options to renew for two additional 40-year periods. (Articles 2.1.2 and 2.2.1 of the Ground Sub-sublease; R.R. Vol. 2 at 1179a-80a.)

Fox Chase contemplates constructing as many as 18 buildings, which will be between four and nine occupied stories, on the Property. (Orphans' Ct. Op. at 1, 25-26.) Construction of these buildings would consume the northern and western wooded areas of the Park and, ultimately, the golf driving range. (Orphans' Ct. Op. at 25.)

On March 6, 2008, the City Council voted to approve a bill that would authorize the lease of the Property as described above. (Orphans' Ct. Op. at 20.) Mayor Michael A. Nutter signed the bill into law on March 12, 2008 (March 12, 2008 Ordinance). (Orphans' Court Op. at 20.) In the March 12, 2008 Ordinance, the City concluded that "it is no longer practicable or possible" and "will not serve the public interest" to continue using the Property as parkland. (March 12, 2008 Ordinance, Section 1(J), Appellants' Ex. 16; R.R. Vol. 3 at 1321a.) In reaching this conclusion, the City reasoned that continuing to use the Property as parkland "would preclude Fox Chase from expanding its campus and will likely compel Fox Chase to relocate its existing campus and future facilities outside the City." (March 12, 2008 Ordinance, Section 1(J); R.R. Vol. 3 at 1321a.) The City further reasoned that this, in turn, ...

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