Metro

A Blair County judge Monday overruled the city’s preliminary objections to a lawsuit by a neighborhood group that seeks to keep the city from building homes on Orchard Park in Logantown — setting up a pre-trial conference for September.

David Consiglio’s ruling is based on the city having failed to make it “clear and free from doubt that (Orchard Park on the 200 block of Beech Avenue) was not dedicated to public use” — as the Friends of Little Orchard Park claim it was.

The Friends’ claim is based on the state’s Donated or Dedicated Property Act (DDPA), which requires that municipalities obtain permission from their county’s Orphans Court to decommission dedicated parkland, even if such dedication was only implied.

The ground has been used as a park for more than 100 years, it’s listed as a park on the city’s comprehensive plan and website and has recently featured play equipment and open space — having come under control of the city in 1944 via a tax sale purchase of seven adjacent lots, the judge states in his opinion and order.

The city’s Redevelopment Authority in December accepted a proposal from Graystone developer Jeff Long to build seven single-family homes on the tract, following Long’s response to a request for proposals for such a project.

The development effort is in response to a push from City Council to construct new homes and to renovate blighted ones, where possible, in order to reverse generations of tax base losses.

Represented by attorneys Timothy Fitchett, Michael Parker and Erin Brind’Amour, the neighborhood group is asking for a permanent injunction against the city plan.

In its preliminary objections, the city cites Section 6 of the DDPA, which states, “Nothing in this act shall be construed to limit or affect the control by a political subdivision of public lands or buildings acquired by such political subdivision by purchase or condemnation.”

Thus, because the city acquired the ground by tax sale purchase, “DDPA analysis ends, with no recovery (via the lawsuit) possible,” the city argues.

Furthermore, the ground was never dedicated as a park — implied or otherwise — because dedication requires, as with a contract, “both offer and acceptance,” according to the city’s preliminary objections, which cite a Commonwealth Court precedent decision.

There was no such offer for the ground to be used as a park as part of the tax sale acquisition, according to the city, which is being represented by city solicitor Mike Wagner and Redevelopment Authority solicitor Patrick Fanelli.

Preliminary objections that seek dismissal of cases “should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief,” the judge notes, citing a precedent ruling.

But there is doubt, based on a state Supreme Court ruling in connection with DDPA Section 6, the main pillar of the city’s argument, according to the judge.

That section creates ambiguity in the DDPA, making it “potentially paradoxical,” according to the Supreme Court, the judge writes.

The Supreme Court interprets Section 6 not as definitively eliminating the requirement for municipalities to respect prior express or implied parkland dedications, but rather finds that it is “most reasonable to construe Section 6 as redressing a concern for the preservation of such rights and interests as a political subdivision may have acquired in connection with a purchase,” the judge states, quoting the court.

Thus, Section 6 doesn’t entirely remove all trust property that had been purchased from the DDPA’s purview, the judge wrote, still quoting the court. Rather, “the DDPA applies to fully-realized dedications, as well as to ones where there may be uncertainty as to the acceptance,” he wrote.

The city’s additional argument — that for a park to have been dedicated requires that there needs to have been an “offer” for dedication — “gives short shrift” to a Supreme Court ruling that “a property is ‘dedicated’ to public use by a municipality whenever the municipality has both committed the property to public use and the public has accepted it for such use,” the judge wrote.

The part of that city argument that questions the “intentions of the grantors” — given that the property came to the city via tax sale purchase — may be outweighed by the tract’s history as a park for more than a century, its listing as a park on the city’s comprehensive plan and website and its use by residents for recreation, according to the judge.

Mirror Staff Writer William Kibler is at 814-949-7038.