Case Law R Case Law Review eview Recent "Open Space Lands Act" Cases Municipal acquisition of land for public park purpos- es, and the construction of improvements and mainte- nance thereof, have always been recognized as a le- gitimate purpose of local governments. The concept of include such concentrated activities as basketball courts, tennis courts and swimming pools on the one hand and bucolic trails for bird watching and other "passive" recreational uses, on the other. Municipal governments' efforts to preserve open space for the sake of agricultural and land conservation uses are a more recent phenom- enon. The authority for local governments ­ here most particularly second class townships ­ to do these func- tions is premised upon two separate laws, the Second Class Township Code, 53 P.S. §65101, et. seq. (and for other forms of municipalities, their respective codes) and the Open Space Lands Act, 32 P.S. § 5001, et seq. ("OSLA"). Fundamentally, Townships have the authority, ments, agriculture use easements, development rights under the Second Class Township Code, to purchase or whatever similar mechanism may be used for this land outright (in fee simple ownership) for park or purpose-a township does not act under the author- recreational purposes and also have the authority, ity of the Second Class Township Code, but rather pursuant to the Open Space Lands Act, to purchase acts under the authority of the Open Space Lands Act "less than fee" interest in property, such as conserva- (OSLA). tion easements or purchase of development rights. The Open Space Lands Act (OSLA) both "giveth" and It is very important, however, for Townships to use "taketh away" township powers. On the one hand, these powers constitutionally and in accordance with OSLA authorizes local governments to acquire prop- statutory requirements. erty interests in land not only by fee simple ownership, The Second Class Township Code, at 53 P.S. Sec- but alternatively by any "property interest." Thus, for tion 67201, authorizes a township board of supervi- purposes of open space preservation, a municipal- sors to acquire lands (or buildings) in fee simple, by ity need not acquire ownership of the property, but gift, devise, purchase or the exercise of the right of may purchase a conservation easement, agriculture eminent domain. use easement, development rights, etc., leaving the There is, however, a very substantial limitation on a property in private ownership under and subject to the Township's right to acquire such lands by the exercise restrictions imposed by the municipality's acquisition of eminent domain, since that action-the condemna- of the easement/development rights, etc. tion of private property-can only be "for recreational purposes," effectively, parkland. however, from exercising the power of eminent do- Conversely, in such instances where a township main for such purposes. Section 5008.b of OSLA wishes only to preserve existing land uses against states: development-i.e., acquiring conservation ease- ConserveLand Page 6 Case Law R Case Law Review eview "Local government units other than counties or vania Supreme Court concluded that the two statutory county authorities may not exercise the power of provisions did not, in fact, overlap. Thus, any taking of eminent domain in carrying out the provisions of a fee simple interest in land for recreation purposes- this Act." whether it be an urban lot for a swimming pool or basketball court or a farm for passive recreational use- would be permissible under the Second Class Township Middletown Township v. Lands of Stone Code's authorization to condemn property for recre- The situation can become confusing where a ation purposes. The Court concluded: township decides to condemn a substantial parcel of private property-say a farm or portion thereof-os- "This Court holds that, as a matter of law, a sec- ond class township does have the authority to con- recreational plan in mind. Such occurred in the case demn property under the Township Code, for any of Middletown Township v. Lands of Stone, 939 A.2d legitimate recreational purpose, despite the restric- 331 (Pa. 2007). This case arose in the Bucks County tions promulgated by the legislature in the [Open municipality of Middletown Township, organized Space] Lands Act. ... The Township Code gives and existing under the Second Class Township Code. power to second class townships to condemn land The Township Board of Supervisors, upon being for recreational purposes. The [Open Space] Lands informed that a particular farm (that it had denoted Act withholds power from second class townships in its 1991 Recreation, Parks and Open Space Plan to condemn land for open space purposes. The two as desirable for acquisition) had been partitioned into four parcels, and the board whiffed the scent of potential development in the near future. Having so concluded, however, the majority of the Supreme Court also found that Middletown Township - had abused its authority under the Second Class Town- ing that it was acquiring the farm "for recreation and ship Code, since its primary purpose was not to use the open space purposes." The Declaration of Taking Stone Farm for recreation-even passive recreation- properly cited the authority of the Second Class but rather to preserve its agricultural use. For example, Township Code, quoted above, and made no men- the Court noted that the Board of Supervisors voted tion of the Open Space Lands Act. to allow Mr. Stone to continue to use the farm for an - open-ended period of time-sort of like a life estate- tions to the Declaration of Taking, arguing (i) that for his current agricultural use, a concession to the since the farm was a substantial tract of open space, landowner that the Court held to be inconsistent with it was governed by the limitations in the Open Space a good faith recreational purpose. Secondly, the Court Lands Act relating to open space preservation, or in noted that in the township's 1991 Recreation, Parks and the alternative (ii) that even if the Open Space Lands Open Space Plan, the Stone Farm was not mentioned Act did not facially apply to this type of condemna- in the context of parkland acquisition, but rather in the tion, the real purpose of the Board of Supervisors was context of open space/agricultural use preservation. not to create parkland, but rather to prevent develop- The Pennsylvania Supreme Court did acknowledge ment and preserve agricultural use, thus negating the that "recreational use" is not limited to active recre- "recreational" purpose for which condemnation is allowed under the Second Class Township Code. but is inclusive of passive recreational uses where "a The case wound its way to the Pennsylvania tract of ground [is] kept more or less in its natural state Supreme Court, which dealt with the two primary and devoted to the purpose of pleasure, recreation and - amusement ..." Fall 2008 Case Law Review That being true, however, the Court rejected the Ephrata School District case arose in the context of township's contention that it could lawfully condemn the school district's desire to acquire a 50-foot wide the property for recreational use, under circumstances access driveway easement across private property that had previously been subjected to an agricultural use and the only connection with recreation was a hazy easement by the county. potential future conversion from agriculture to passive The property in question had been subjected to an recreational parkland. The Court stated, in so holding: agricultural easement in 1984, in favor of the Lancast- er County Agricultural Preserve Board. The Lancaster "In order to uphold the invocation of the power County Board of Commissioners, as the holder of of eminent domain [for recreational purposes] this the easement in question, refused to consent to the grant of the proposed access easement in favor of the real and fundamental, not post-hoc or pre-textu- School District, by the private property owners. al." With the County Board of Commissioners rejecting In further elaborating on the standard of proof which the School District's request for consent, the school a township would have to submit to justify condemna- tion for recreational purposes, the Court stated: that county consent was not required in any event, and further that the proposed right-of-way sought by "Precedent demonstrates that condemnations the school district would not be in violation of the have been consistently upheld when the taking is county's existing easement. orchestrated according to a carefully developed The school district asserted that nowhere in the plan which effectuates the stated purpose. ... agricultural easement held by the county was there a Anything less would make an empty shell of our requirement that the underlying property owner obtain to merely wave the proper statutory language like a scepter under the nose of a property owner and Visit the conserveland.org Library demand that he forfeit his land for the sake of the to read past issues of Case Law Review public." at conserveland.org/lpr/library same for further study and perhaps acquisition, it is the county's consent to grant alternative easements to important for municipalities to make a clear distinc- other parties, so long as the new easement would not tion between these two purposes, recreation on the contravene the provisions of the agricultural preserva- one hand (which certainly can include both active and tion easement. passive recreational purposes, so long as the public has access to the property in question) and, on the The county, on the other hand, argued that even if other hand, resource conservation, agriculture use/ the school district's proposed access easement did not open space preservation purposes. With regard to contravene the county's agricultural preservation ease- the latter, any acquisition of development rights and/ ment, consent from the county was still required under or conservation or agricultural use easements must be § 5011(a) of OSLA which states: effected by negotiation with the property owner, and cannot be acquired by the use of eminent domain. "In the case of an acquisition [of an interest in real property] from a local government unit by a body other than a public utility, such acquisition Ephrata Area School District v. County of Lancaster shall occur only if the governing body, after pub- On the same day that the Middletown Township lic hearing with notice to the public, shall approve case was decided, the Pennsylvania Supreme Court such acquisition." also issued its decision in Ephrata Area School District v. County of Lancaster, 938 A.2d 264 (Pa. 2007). The ConserveLand Page 8 Case Law Review The Commonwealth Court found in favor of the Grassroots Hero Passes Away school district, on the theory that the School District's "acquisition" was from the underlying property owner, For Bob Sugarman, "grass- not from the county, and hence that § 5011(a) did not roots" was a way of life -- an apply. attorney and activist whose in- On further appeal to the Pennsylvania Supreme volvement with environmental Court, this decision was reversed. The Supreme Court and conservation issues, and concluded that the underlying property owner could civil rights spanned 40 years not grant the access easement to the school district and two countries. He was a unless the county board of commissioners consented lifelong advocate for commu- to the new easement. nity activism in southeastern Pennsylvania and beyond and Apparently, the underlying property owners were worked hard to ensure that his waiting on the sidelines as this battle between two efforts supported the good of the community. government agencies took place. One of his victories was the Natale Case for which The opinion does not describe the county board of he served as counsel for the French & Pickering Creeks commissioners' reasoning for refusing consent. Ironi- Conservation Trust in defense of an eased property. cally, the county had not argued that the proposed access easement for the school district would actually "Natale was just one of a number of important issues violate the terms of the underlying agricultural ease- on which he worked so passionately" recalls the Trust's ment. Even in the absence of the language set forth in Immediate Past President Stockton Illoway. "Natale § 5011(a), the agricultural easement itself prohibited was important because it affects all conservation ease- non-agricultural uses except where a non-agricultural ments throughout the state and gives more protection use may be approved by the county's agricultural pre- to them." serve board. Either way, the dice here were stacked Attorney Patricia Pregmon added, "Bob vigorously against the school district. While most land use or fought the case for a decade... the conservation com- development battles are between developers and munity owes him a debt of gratitude for his work on community residents (with municipalities sometimes this case." caught in between), here we see two governmental Sugarman died June 27th after a long battle with agencies at odds with each other over a fairly narrow prostate cancer. He was 71. issue of statutory interpretation. Congress Extends Federal Tax Incentive for Conservation An extension of the enhanced tax incentives for conservation was incorporated into the recent Farm Bill which was passed this spring. The incentives, which apply to a This measure is expected to assist in the conservation of a million or landowner's federal income tax, will: more acres of farms and precious landscapes across the nation. Raise the deduction a donor can The enhanced incentives, which were originally passed in Septem- take for donating a voluntary con- ber of 2005, expired January 1st of this year. With this new passage, servation agreement from 30% of the incentives are now retroactive to the beginning of the year and their income in any year to 50%; will last through 2009. Allow farmers and ranchers to Work is underway in Congress to make these incentives perma- deduct up to 100% of their income; nent with legislation moving forward in both chambers. H.R. 1576 and already has 176 bipartisan co-sponsors. Senate Finance Committee Increase the number of years over Chairman Max Baucus has introduced S. 469 with 27 co-sponsors. which a donor can take deductions Learn more at conserveland.org. from 6 to 16 years. Fall 2008