Parks and other public open spaces deliver tremendous benefits to the public and provide a crucial foundation for building, maintaining, and renewing communities. People rely on the permanence of these civic assets in making decisions on where to live and work. Thus, it is no wonder that Pennsylvania law affords great protections to parks from sale or conversion to non-public uses by the local governments responsible for their care. This guide provides a concise overview of these protections. For a more comprehensive review and analysis, see the companion publication: Ensuring the Permanence of Parks and Other Public Open Space.
For more than 200 years, Pennsylvanians have relied on parks and other community open spaces held and stewarded by government for the benefit of the public.[1] Every day in the Commonwealth, people make decisions on where to live and work based on proximity to these public lands, which they see as reliable places for fun, comfort, and rest. People expect that these places will always be there for them.
This expectation is not unfounded; rather, it is grounded in centuries of common law.[2] Specifically, under the public trust doctrine, land dedicated to a public purpose belongs to the people and must be faithfully held and stewarded for that purpose by the title-holding government body. Government is not free to manage and dispose of this land as if it were an ordinary private landowner.
In Pennsylvania, this common law view was both codified and modified in the 1959 law commonly referred to as the Donated or Dedicated Property Act or DDPA.[3] The DDPA applies to all real estate interests donated to political subdivisions[4] for use as public facilities[5] or dedicated for public use. The Pennsylvania Supreme Court affirmed the DDPA’s applicability to purchased land in a 2010 decision.[6] Dedication can be informal; no formal record of the dedication is required.
The DDPA provides that the donated or dedicated property must stay in trust—its original use must continue—unless the use “is no longer practicable or possible and has ceased to serve the public interest.” If a local government wishes to argue that this is the case, it may apply to the county court of common pleas (in some counties the orphans’ court) for relief. If it does so, the DDPA provides that residents have the right to defend the public trust before the court.
In the event the court agrees that park use “is no longer practicable or possible and has ceased to serve the public interest,” the municipality will still be required to replace the lands leaving the public trust with property of equal size and value for the same purpose or to use any proceeds of sale for the same purpose. In other words, the municipality cannot sell off a park to raise cash for just any purpose; proceeds would have to be directed back into acquiring new parkland.
If the use of a public facility no longer makes sense anywhere, the DDPA provides for addressing other public purposes. However, this is likely only relevant regarding non-park public facilities provided for in the DDPA, e.g., museums, libraries, concert halls. In any case, the Pennsylvania Constitution also prohibits public natural resources from being diminished. (See the Pennsylvania Constitution section below.)
Where a park has been explicitly donated for use as a park, or where a government entity formally dedicates property as such, the applicability of the DDPA is clear. But the DDPA also applies in less clear instances. Dedication can result from one or more actions of a government landowner indicating an intent to dedicate land to a public purpose.[7] The statute provides no fixed rules. Each court will weigh the facts and make its own judgment. Factors suggesting that an informal acceptance has occurred include the posting of park signs, the referencing of the land as a “park” in municipal publications, allocation of funding to support park-like facilities on the land, or the offering of park programs on the land. Any one of these or other factors could be enough—or not. The DDPA directs courts to resolve questions about the effectiveness of an arguable dedication and each court will use its discretion.
Until recently, Pennsylvania municipalities lacked a standard instrument for formally dedicating park land. This resulted in wide variations in practice from municipality to municipality, most notably that formal dedications often appear absent or lost to time. This creates gray area in determining: (1) whether in fact land has been informally dedicated for park or other open space purposes and (2) if informally or formally dedicated, whether a particular government action affecting the land is allowable.
To reduce the risk of confusion, misunderstanding, and ill will regarding acceptable and non-acceptable uses of land held by a municipality or county, the local government may want to make a practice of formally dedicating lands it intends to hold in trust for the public and, at that time, explicitly stating any reservations, exceptions, or limitations applicable to the dedication.
WeConservePA publishes three variations of a Model Declaration of Public Trust to help local governments in accomplishing this. The model includes options to exclude portions of the land from the dedication and detail the activities, uses, facilities, and improvements that are considered consistent with the public purposes. A separate tool, the Model Declaration of Public Trust for Conservation Easements, enables government holders of conservation easements to similarly clarify intentions for that distinct form of property interest.
Article 1 of the Pennsylvania Constitution—the Declaration of Rights—is the state’s bill of rights for the people. It sets forth rights to free speech, trial by jury, bearing arms, and religious freedom. It also sets forth environmental rights. Section 27, entitled Natural resources and the public estate, reads as follows:
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.
The Constitution places a fiduciary duty on the Commonwealth to conserve and maintain Pennsylvania’s public natural resources for the people.[8] This obligation applies both to state government and local governments. Public lands, together with the air, water, plants, and animals on them, are owned by the people—not government; government’s role is to conserve and maintain them. While the Constitution has not been interpreted as an outright bar to the sale or exploitation of public natural resources, the Constitution does require that any proceeds from such actions be reinvested in the trust purpose of protecting and preserving natural resources in the public’s interest.
Subject to whatever contractual and other obligations that might exist, government may freely choose to sell off a municipal building, sewer plant, or maintenance yard to fund other activities or for other purposes. It does not have the same discretion with parks:
Lands acquired by municipal government using open space tax revenues established by public referendum enjoy another layer of protection. Pennsylvania’s open space act[9] provides that before local government officials can dispose of such open space property interests, they must first receive approval by a majority of voters in an election regarding the specific interests to be disposed.
Many county and local municipal park properties are subject to restrictive covenants limiting use of the land to recreation and conservation purposes, the covenants having been imposed as a condition of the local government receiving state grant funds for acquisition and development of the land. The statutes authorizing these grants and requiring these restrictive covenants also establish mechanisms for the state to release the restrictions.
If a local government were to succeed in getting the state to release its grant restrictions, that does not eliminate the need for the local government to satisfy the requirements and process set forth in the DDPA for removing land from the public trust. This was a key finding in the Pennsylvania Supreme Court’s 2017 Downingtown decision.[10]
[1] This guide will use the word park as a catch-all term for all the variety of open spaces held by government that provide conservation, recreation, and aesthetic benefits to the public.
[2] Common law is the body of law derived from court decisions. It stands in contrast to statutory law, which is law created by legislative bodies.
[3] The act of December 15, 1959, P.L. 1772, 53 P.S. §§3381- 3386
[4] A political subdivision commonly refers to a county, city, township, or other municipality having legislative powers.
[5] §1(3) of the DDPA states that: “‘Public facility’ shall mean without limitation any park, theatre, open air theatre, square, museum, library, concert hall, recreation facility or other public use.”
[6] In re Erie Golf Course, 992 A.2d 75 (2010).
[7] In re Borough of Downingtown, 161 A.3d 844 (Pa. 2017).
[8] See the Pennsylvania Supreme Court’s ruling, Pennsylvania Environmental Defense Foundation v. Commonwealth, 161 A.2d 911 (Pa. 2017), No. 10 MAP 2015, for an explanation of the public trust obligations placed on government in regard to public natural resources.
[9] Act of January 19, 1968, P.L. 992, No. 442, 32 P.S. § 5001 et seq., as amended. Its full title is “An act authorizing the Commonwealth of Pennsylvania and the local government units thereof to preserve, acquire or hold land for open space uses.”
[10] Downingtown at 874. The Downingtown properties specifically benefitted from grants under the state’s Project 70 Land Acquisition and Borrowing Act. By logical extension, the Court’s decision is equally applicable to properties benefitting from the state’s Keystone Recreation, Park and Conservation Fund, and other state grant programs administered by the Pennsylvania Department of Conservation and Natural Resources.
