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Did PA House lawmakers get hoodwinked into signing away park protections?
The Web site for the award-winning alternative weekly, the Philadelphia City Paper.
Did PA House lawmakers get hoodwinked into signing away park protections?
Last May, with little fanfare – with no fanfare at all, in fact – the Pennsylvania House of Representatives passed HB2224, a bill which, on its face, made it easier for municipalities to sell off unwanted/unused land.
That, at least, was the purported purpose of the bill – and that's what several conservation-minded Pennsylvania lawmakers understood the bill, which was sponsored by Republican State Rep. Adam Cutler, to do. The bill passed the House unanimously, without dicussion or debate.
Conservationists and some lawmakers are now saying that might have been a mistake.
According to various conservation groups (and hunting clubs) around Pennsylvania, the bill's real effect (and maybe purpose) is to strip away a protection long held by city and town parks: a requirement that any sale of such public park lands be approved in Orphan's Court. HB2224, these groups say, would strip that protection and give city officials the ability to sell off parks willy nilly.
Philadelphia Deputy Mayor for Environmental and Community Resources and Parks & Rec Commissioner Michael DiBerardinis says that the bill, if it in fact does what its opponents say it does, "is ia disaster. A lot of this land was donated and bought with the assurance that these gifts [were] for perpetuity. ... This bill basically opens the door for local government to dispose of parkland based on a whim."
And that, say some state reps, isn't what they meant to vote for.
Take Rep. Kate Harper, a Republican representative from Montgomery County, and well regarded among land conservationists. Harper, like the rest of her colleagues, voted “yes” on HB2224 because “it appeared to me that parkland was an exception to the bill.”
But after re-reading the legislation on the phone with City Paper, Harper admitted that “I now believe that maybe the bill was written wrong.”
State Rep. Greg Vitali, a staunch environmentalist who lead the House campaign to impose a moratorium on the leasing of state forests for natural gas drilling – and who voted “yes” on HB2224 – appears to be having a similar moment of buyer's remorse.
“If you read the bill on its face, there is really no language to alert you that there is any problem,” says Vitali. But now, he says, “there seems to be a uncertainty about how broad, how much of a problem this is for people who value parkland in municipalities.”
(State Rep. Adam Cutler did not immediately return a call for comment; any update willbe posted here)
If the Reps were confused, it's maybe not hard to understand why: the language in HB2224 is dense, ridden with double-negatives and the like (it's an amendment specifying exemptions to a law itself providing exemption from other laws), and a fiscal note for the bill makes no reference to the very paragraph that conservationists say is a trojan horse upending decades of legal precedent.
Indeed, the first few clauses of the bill are careful to specify that the court-free sales would apply to land that is “unencumbered” by public use restrictions or deed restrictions or covenants.
But it's sub-paragraph 2(c) that's got park friends furious. It says that some of the above restrictions “notwithstanding,” even lands “which are exempt under this section, if dedicated to public use or not, shall not be deemed to be held by the political subdivision in trust for the benefit of the public and may be conveyed, sold, alienated, or disposed of as permitted by statute.”
This little clause “makes for a fundamental change in the law,” says Andrew Loza, executive director of the Pennsylvania Land Trust Association. “For hundreds and hundrds of years, we've lived under certain common law principals and [HB2224] changes that.”
Loza presents the problem this way: while it's true that some public lands – those protected by deed restrictions, for example – remain exempted, municipal parks often come about in a variety of ways. The land might have been donated without a specific deed restriction, for example; the land might not have been donated but sold at a nominal cost (the bill specifies land that has been purchased as falling under the new law); the park might consist of various parcels, given over to public use at various times and under various circumstances.
So far, Loza says, the requirement that the sale of such lands be approved by a court ensured a centuries-old principle that “if a government has dedicated land to a public use, the public trust continues in that use. So if a park has been a park, the public has a reasonable expectation that it will be a park.”
“This section C says, 'Nope, not any longer. If you don't meet certain criteria those rules don't apply.'”
But conservationists, say Loza and Tracie Blummer of the Philadelphia Parks Alliance (as well as many other groups in online posts and email blasts), weren't consulted before this bill hit the floor. And at least some state reps, it appears, had no idea of the potential for controversy.
“There was no discussion of the bill, no debate,” says Rep. Vitali. “Generally, when there are controversial matters they'll be brought up in caucus.”
Rep. Harper, who approached Rep. Cutler, the bill's sponsor after conservationists sounded alarms, says “[Cutler] assured me that wasn't the intention of the bill – but we'd already voted on it.”
“It's possible they [the conservationists] were right and I was wrong.”
This week, HB2224 moved out of a Senate committee, and could now come to a vote as early as Monday.
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