An environmental legal services firm acting on behalf of residents living near Fairhaven Park has formally demanded that Kennedy Township immediately halt its plans to sell a 19.5-acre parcel of land adjacent to the park.
The cease and desist demand letter, served to township officials on June 5 on behalf of a group known as Friends of Fairhaven Park, claims that the proposed sale of the property, which was the subject of a bidding process triggered in mid-May, directly violates the state’s Donated or Dedicated Property Act as well as the township’s trustee duties under the Environmental Rights Amendment under the state Constitution.
“The Township must immediately either cease the sale of the lot and/or petition the Orphan’s Court for permission to take the park out of the public trust,” attorney Tim Fitchett of Fair Shake Environmental Legal Service wrote in the demand letter to the township.
According to the letter, the state’s Donated or Dedicated Property Act was created to prevent municipalities and the state “from doing what the Township is now proposing: selling important public resources as income for a municipality.”
Fitchett wrote that those who drafted the law “did not want municipalities to look at their parks and open spaces and wonder how much they could make by selling it to private parties. Doing so would inevitably lead to all parks and public spaces being sold to private parties.”
The township called for bids to purchase the property and use it to develop a minimum of 32 single-family home lots. The minimum acceptable bid amount was $750,000. The township received four bids by Monday’s deadline and they ranged from a low of $775,000 from Horizon Property Group in Canonsburg to a high of $1.4 million by Sample Development Corp. of Pittsburgh.
The topic likely will surface at Thursday’s Board of Commissioners meeting, which is scheduled to take place at 6 p.m. at the township Municipal Building, 340 Forest Grove Road.
Township Manager Gregory Clarke said Wednesday the township is following a process that was reviewed by its solicitor. “We’re doing everything according to the law,” he said.
At Monday’s bid opening, Clarke said that the Board of Commissioners ultimately will decide the property’s fate, but its decision might not be made at Thursday’s meeting.
The township’s decision to call for bids for the property adjacent to Fairhaven Park struck a nerve with many local residents who would prefer to see that property either preserved as open space or utilized to expand the park. An online petition seeking to prevent the property sale had 1,224 signatures as of Wednesday afternoon. The petition was posted on the Change.org website on behalf of Friends of Fairhaven Park.
Fitchett, in his demand letter to the township, wrote that to protect public parks, the Donated or Dedicated Property Act states that all lands or buildings donated to a political subdivision for use as a public facility “shall be deemed to be held by such political subdivision, as trustee, for the benefit of the public with full legal title in said trustee.”
According to Fitchett, the act goes on to say that “All such lands and buildings held by a political subdivision, as trustee, shall be used for the purpose or purposes for which they were originally dedicated or donated, except insofar as modified by court order pursuant to this act.”
Fitchett wrote that the township-owned property that’s the subject of the bidding falls “squarely” within the scope of the DDPA. Fitchett wrote that the former Kennedy Township School District and Allegheny County conveyed the land to the township on July 4, 1951, with the deed expressly stating that the “condition of this conveyance is that the premises described herein are to be used for Township Park purposes.”
“That is a formal declaration of the intent of the grantor to give the park to the Township for public use,” Fitchett wrote. “Selling the property to a private developer is an explicit breach of the terms of the grant and an abdication of the Township’s public trust duties under the DDPA.”
Fitchett said the township would need to petition the Orphan’s Court for permission to sell the park, but to be successful, the township would need to show that the original use of the property held in trust as a public facility is no longer “practicable or possible and has ceased to serve the public interest.”
Fitchett wrote in his demand letter that the use of that property as a park is still possible and, as a result, “such a petition is doomed to fail.”
Fitchett wrote that, given its duties under the DDPA and the state’s Environmental Rights Amendment, the township should abandon its plans to sell the property adjacent to Fairhaven Park – or what he considers a “portion” of the park.
Fitchett wrote that if the township moves forward with the bidding process, the Friends of Fairhaven Park are prepared to take “all necessary legal action, including filing for an injunction to prevent the transfer of public land, an injunction forcing the township to petition the Orphan’s Court for permission to sell the land, and pursuing other remedies available under the law.”
Fitchett said Wednesday the demand letter sent to the township on June 5 “doesn’t have any legal effect. I haven’t instituted a lawsuit on behalf of the Friends of Fairhaven Park. We’re not doing anything other than alerting the township that we believe what they’re doing is illegal and if they continue to go down that path, we may or may not exercise our legal rights to contest that sale.”
Fitchett said what Friends of Fairhaven Park wants is rather simple – to preserve the parcel in question as it was intended to be used, perhaps as a network of trails for activities such as dog walking or mountain biking.
“The goal is to protect that land,” he said, “and hopefully turn it into something that’s a recreational resource instead of the proposed development.”
This would be a once in a lifetime opportunity for a park expansion not more houses. Once the property is gone, you’ll never get the opportunity again.