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HARPER: When Taxpayers Agree To Be Taxed for Open Space That’s What They Want

In 2006, the good folks of Upper Pottsgrove Township Montgomery County, PA decided to tax themselves to raise money to buy open space in the Township. The referendum passed handily and the voters agreed to pay .25 percent tax on their earned income “for making additional  acquisitions  of real estate for the purpose of securing open space pursuant to the Open Space Lands Act, Act 153 of 1996, 32   P.S. 5001 et seq.”

Just two years later, with the enthusiastic support of the local farmer who owned the land, the township acquired the Smola Farm at 370 Evans Road, acquiring more than 35 acres for “public open space.” But now? Now, the current Board of Commissioners is moving ahead with a plan to build a $5.5 million dollar Municipal Complex on the property.

The open space tax still exists in Upper Pottsgrove. Soon the Smola Farm won’t.

The state law which permits the voters to impose a tax on themselves for open space purposes lists several appropriate uses of the land purchased with the proceeds:

(1)  To protect and conserve water resources and watersheds;

(2)  To protect and conserve forests…;

(3)  To protect an existing or planned park, forest, wildlife preserve, nature reserve or other recreation or conservation site…;

(4)  To protect and conserve natural or scenic resources, including but not limited to soils, beaches, streams, flood plains or marshes;

(5)  To protect scenic areas for public visual enjoyment from public rights of way;

(6)  To preserve sites of historic, geologic or botanic interest; [and]

(7)  To promote sound, cohesive, and efficient land development by preserving open spaces between communities…All good reasons and not one says it’s ok to build a new municipal complex on land preserved as open space.

At the time the Open Space Tax Referendum appeared on the ballot, supporters advertised it and pledged only to purchase open space from willing sellers, reminding the voters that open space purchases would not only preserve “a more beautiful and better place to live,” but would also “increase property values” and “decrease costs associated with schools.” Montgomery County’s recent study on the fiscal impacts of preserving land, Return on Environment, proves them right.

But now, in Upper Pottsgrove, all of that was forgotten, the land simply regarded as “empty,” and a perfect site for a development project.

The land could have been deed restricted at the time it was purchased, but no one believed anyone would forget the lengths to which the township’s taxpayers had gone to save it.

When the Department of Conservation and Natural Resources gives money to preserve land, the deed carries a notation: “”This property, or interest in property, was either acquired with or donated as a match for funds provided by the Pennsylvania Department of Conservation and Natural Resources (“”Department””)… This property, or any portion of it, may not be converted to purposes other than those authorized under the Act for property acquired with Department funds. No change of use and no transfer of ownership, control, or interest in this property may occur, and no encumbrance may be placed on this property, without the written consent of the Department or its successor.”

When Montgomery County makes a grant for an open space purchase, it insists that a Declaration of Covenants, Conditions & Restrictions, spelling out that “The future use of the property is restricted to open space, in perpetuity, with some form of public access as agreed upon by the County.”

When a conservancy acquires land to be preserved, a Conservation Easement spelling out the permissible uses is generally recorded against the deed. But when Upper Pottsgrove bought the land, there was no requirement the deed specify open space. And people forget.

This doesn’t change the law – if property is purchased using open space tax money, or is purchased and used for public purposes, both the Open Space Lands Act and the Donated and Dedicated Property Act protect it in perpetuity, but it does lead to some confusion. Local governments change and institutional knowledge is lost.

One way to avoid a problem has been suggested by, an association of land trusts who have developed a “Model Declaration of Public Trust,” which can be recorded against the deed to land purchased as open space, so that its purpose as open space is never forgotten.

In Upper Pottsgrove, of course, the taxpayers have NOT forgotten. The Commissioners, now aware of the problem, should do the right thing and leave the open space open.


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Radnor BOC Votes to Keep Sweetheart Deal With Ardrossan Farmer

A Radnor Township commissioner has been crusading for the township to recover some $291,489 in lost tax revenue due to an agreement by the Ardrossan Farms development to lease land to a farmer for $1 a year.

Issues of fairness and the intangible value of preserving open space came to the fore in a sometimes contentious discussion Monday. The Ardrossan estate was the last large piece of property to be developed in Radnor. Township commissioners seven years ago wrangled over trying to preserve part of it as a green swath of land for future generations.

Commissioner Richard Booker argued the township is getting the raw end of the deal by allowing a farmer to lease township property for that small sum. Other taxpayers must make up the brunt of the tax that otherwise would be collected by the township, county, and school district, Booker contends.

However, he lost his motion 4-2, with Commissioner Jake Abel, the other Republican on the board, voting with him. Commissioner Sean Farhy abstained.

Booker had also voted against the original agreement with Richard Billheim’s Fern Valley Farm in 2015.  The agreement allows the wealthy property owners, including County Council Chairman Brian Zidek, a Democrat, to access agricultural tax breaks under Act 319 because Billheim farms part of their properties. Zidek, for example, who owns his 14-acre estate under a limited partnership, paid $4.8 million in 2019. With the agricultural exemption it is assessed at $3.9 million and the township, school district and county receive $14,865 less in taxes yearly because of that exemption.

Zidek did not respond to requests for comment.

Booker said Delaware County’s recent countywide property tax reassessment resulted in “a tax shift” that caused commercial properties to pay less and residential property owners to pay more.

“It’s become clear that the township license agreement with Fern Valley enables landowners to avail themselves of the lower agricultural assessment values,” said Booker. “What I want is to get the township out of the business of farming.”

When the township purchased 71 acres for $12 million from the 300-acre Ardrossan estate that was being developed as upscale housing in 2013, officials promised to build a trail for the public on those acres. So far the township has not built its trail and those acres are being used by the farmer not the public, said Booker.

“There is currently no access to the land by the public and no public facilities,” said Booker. Meanwhile, Radnor Township is paying $600,000 a year in principal and interest on the $12 million it borrowed for that land.

Commissioner Lisa Borowski argued the township benefits from fewer homes being developed at Ardrossan because of the farming and the purchase of the open space. There is less wear and tear on the roads, sewers and fewer children in the school system, she said.  If not for the agreement with the farmer and the subsequent agricultural easements the property owners obtained, “we would have substantial development” at Ardrossan. She promised to work toward building the trail system.

The Montgomery Scott manor house at Ardrossan.

“It’s iconic,” Borowski said of Ardrossan, which inspired the “The Philadelphia Story,” a play and movie based loosely on the late socialite Hope Montgomery Scott, who was portrayed by Katharine Hepburn. “I don’t see how canceling the lease with the farm would be advantageous to us in any way.” It is the last working farm in Delaware County, she said.

Farhy said the lease is “not a good business proposition” for the township. He noted various other entities, like sports clubs that use township property, pay fair market value.

When Booker tried to speak again, Board President Jack Larkin cut off his mic and Farhy jumped up and said, “You are not going to mute us. We have freedom of speech.” Larkin then called a recess.

Kate Wolff, who is the wife of Billheim, said “We disagree vehemently with Booker and Farhy’s comments. While the lease is only for a dollar, we actually provide the township much more in return.”

For example, Wolff said, “We keep the fences repaired, the fence-lines trimmed and the fields maintained. And of course we have our beautiful cows in the fields for everyone to see and enjoy. This hilly ground and low-lying wetland is perfect for cattle but not suitable for anything in regards to fields for sports.”

“We donate the upkeep of this land to the township. If we did not pay the costs to maintain this ground, the township would take on that expense, creating more taxes for residence,” she said.

“As for the homeowners who have purchased tracts on Ardrossan, we appreciate that people with enough money can donate land.” she said. “Most people can’t. We support these preservation tax laws. Open ground is shrinking. Once it’s gone, it’s gone. You can’t get it back.”

During public comment, resident Leslie Morgan said, “A dollar a year is not a fair market value.” The property owners claiming the agricultural exemption should do their own farming or have agreements with Fern Valley. Her parents, who are in their 90s continue to farm on their land that receives an agricultural easement in Chester County.

“Brian Zidek can consult me, maybe my mom can come out to help him,” said Morgan.

Sara Pilling, another resident, complained that the farmer is using herbicides and pesticides on the corn he grows.

“When Hope Scott had bovines on her property, they were Ayrshire milk cows” but Billheim now has 60 Black Angus beef cattle, which are different animals and could be dangerous to children, especially during spring calving season.

“This is an incompatible business,” said Pilling.

In a related matter, many of the new homeowners also bought adjacent lots and deeded those to the North American Land Trust, receiving tax benefits and deed-restricted open space that can’t be developed next to their houses, a plan promoted by Eddie Scott, who was selling off the land on behalf of his family.  Scott declined to comment.

Meanwhile, several of the Ardrossan Farms residents are appealing the reassessment of their properties and Delaware County opposes those appeals.

“As for local taxes, I reject the premise that all taxpayers in Delaware County should subsidize these folks in Radnor,” said William Martin, the county solicitor. “There is clearly a value to the property staying undeveloped. It contributes to the value of the properties at Ardrossan Farms. The assessment is modest given the value of the Ardrossan properties. There is no reason for the rest of the county taxpayers to be subsidizing those mansions.”

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