A 1974 law that appears to prohibit the city from using an intermediary to sell city-owned land at a discount price may be the death knell of the proposed Scouts deal.
Mayor Nutter wants to sell 231-251 N. 22nd St. to the Boy Scouts of America Cradle of Liberty Council for $500,000 to settle a federal lawsuit.
In return, the Scouts would agree to stop seeking some $960,000 in legal fees from the city. Both sides agree the property is worth about $1 million.
The city plans to use the Philadelphia Authority for Industrial Development as an intermediary in the sale. Otherwise, the sale would be open to public bidding.
But under Bill 1048, signed into law by then-Mayor Frank L. Rizzo, if PAID is used to sell city property, the property must be sold at fair-market value.
The deed to the property also must contain a restriction against discrimination based on race, color, national origin and creed.
(To view the ordinance, click www.issuu.com/philagaynews/docs/city_industrial_devt_ord_nce?viewMode=presentation&mode=embed.)
City eviction efforts
The city has been trying to evict the Scouts for years because of their discrimination against gays and atheists on public property.
But last year, a federal jury ruled the city’s eviction attempt unconstitutional because it cited the Scouts’ antigay policy as a reason for the eviction.
Members of Philadelphians Against Subsidized Discrimination want the city to appeal the verdict.
They contend the trial judge conducted the trial in a manner that minimized the right of the city to set antibias standards — and that overstated the right of the Scouts to discriminate on public property.
But in recent appearances, Nutter said the proposed settlement is preferable to appealing the verdict. Once the land is transferred to the Scouts, the city no longer would be entangled in the Scouts’ discrimination, Nutter said.
R. Duane Perry, a member of PASD, said Bill 1048 clearly forbids the city from selling the property to the Scouts if PAID is to act as an intermediary.
Even if the Scouts agree to pay a fair-market price for the property, they still discriminate on the basis of “creed” because they exclude atheists and agnostics, he noted.
“The city cannot transfer property to an organization that discriminates,” Perry said. “Plain and simple. That’s the plain language of the Bill 1048. What will it take for the mayor to realize that the only answer is to appeal the jury verdict?”
He said using PAID as an intermediary in the proposed settlement would result in additional costly litigation for the city.
“They [Nutter officials] are planning to do something that’s patently illegal,” Perry continued. “That’s a path leading to greater legal trouble. At what point will Mayor Nutter stand up and say no to discrimination?”
Mark McDonald, a spokesperson for Nutter, had no comment about Bill 1048. “It seems you’re jumping ahead a bit,” McDonald said, in an email. “The administration is looking forward to City Council hearings that will provide an opportunity to review all aspects of the proposal.”
City Council efforts
City Councilman Darrell L. Clarke, who introduced an ordinance in December to help facilitate a settlement, said he doesn’t plan to hold a public hearing until some type of solution is reached.
“I haven’t scheduled a public hearing because I think there needs to be additional conversations,” Clarke said. “I’m trying to work out an amicable solution. It would be unlikely that I would have a hearing prior to that [amicable solution].”
Clarke said Nutter officials are free to appeal the jury verdict if they so desire. “If they want to appeal, they can go appeal. That has nothing to do with my ordinance.”
His ordinance will die in committee in December if no hearing is held by then. “I’m an optimist, and I continue to try to be a peacemaker,” Clarke said.
Clarke said Bill 1048 wouldn’t necessarily be a deal-breaker. He said the Scouts may agree to pay a fair-market price for the property. He also wouldn’t rule out the possibility of the Scouts agreeing not to discriminate on the property, even as owners.
Kera Armstrong, a spokesperson for the Scouts, had no comment on whether the Scouts would pay a fair-market price for the property or if the Scouts would abide by a deed restriction prohibiting discrimination based on creed.
William H. Ewing is an attorney for Mel Heifetz, a local philanthropist and businessperson who wants to purchase the property in question, and turn it over to a group that doesn’t discriminate.
“In my opinion, the so-called settlement agreement isn’t valid because it’s contrary to city ordinance,” Ewing said. “Therefore, the city should proceed to consider my client’s offer. Mel’s offered $1.5 million outright — or $1 million plus Mel pays the Boy Scouts’ legal fees to the extent that the city is obligated to pay them.”
Paul J. Deegan, a spokesperson for PAID, said the provisions of Bill 1048 wouldn’t necessarily apply to Clarke’s ordinance, because Bill 1048 isn’t specifically mentioned in the ordinance.
“The ordinance introduced by the city for this transaction does not mention Bill No. 1048, so it would not be subject to that bill,” Deegan stated in an email.
When asked if PAID could cite a legal opinion to support that position, Deegan noted there is no deal before PAID and that City Council has not yet passed an ordinance.
“Until something is presented for PAID’s consideration, I have nothing more to say on the matter.”