Petition to Convey Veterans Memorial Park to a New School
In In re Bangor Memorial Park, 130 Pa. Commw. 143, 567 A.2d 750 (Pa. Cmwlth. 1989) (Bangor II), the court affirmed the order of the Northampton County Court of Common Pleas in In re Bangor Memorial Park, 4 Pa. D.&C.4th 343 (1988) (Bangor I), denying the Borough of Bangor's petition to convey 1.2 acres of Bangor Memorial Park to the local school district for erection of a new elementary school.
Bangor Memorial Park was officially dedicated as a memorial to veterans of United States wars by way of Borough Ordinance No. 416 in June 1950.
In December 1987, the Borough Council voted to convey a 1.2-acre section of the park to the school district, which voted to accept it.
In October 1988, the Borough asked the Orphans' Court to approve the conveyance pursuant to Section 4 of the Donated or Dedicated Property Act, 53 P.S. 3384.
The Borough sought to replace the tract of land with a 3.6-acre tract that it owned.
Taxpayers opposed the conveyance, hearings were held, and, in December 1988, the Orphans' Court denied the request for conveyance and dismissed the Borough's petition, determining that the Act was not applicable where there had been a formal dedication and the Borough had accepted the land for use as a public park.
In this regard, the Orphans' Court specifically stated:
It is obvious to this court that the phrase "... where no formal record appears as to acceptance by the political division..." [53 P.S. 3382] acts as a modifier to the language that directly precedes it.
This finding is not only grammatically correct, but as the cited case indicates, it is also the legal, statutory construction required under the rules of construction, supra.
Thus, 53 P.S. 3381 et seq. is applicable only when there has been no acceptance by, and dedication of, land for use as a public facility.
It is not disputed that on June 5, 1950, pursuant to ordinance no. 416, the Borough of Bangor formally dedicated the existing Bangor Memorial Public Park as a public park.
This action by the Bangor Borough Council constitutes the formal dedication of the park which had been previously acquired for public use as a park in the 1930's.
This formal acceptance and dedication by the political subdivision of land to the public for use as a park removes the proposed 1.2-acre conveyance from the parameters of 53 P.S. 3381. Simply stated, the court holds that 53 P.S. 3381 et seq., does not apply to the proposed conveyance of the 1.2-acre parcel of Bangor Memorial Park and, therefore, the conveyance must be judged, instead, solely by common-law principles applicable to land held as a public trust. Bangor I, 4 Pa. D.&C.4th at 350-51.