By Kate Harper, Esq.
So often, a homebuyer selects a house or neighborhood because it is close to open space and parks. Then, just a few years later, the view changes completely when the bulldozers appear.
Is there anything that can be done about this? The answer is yes—but it depends on whether the land was permanently conserved or merely undeveloped. If the land is simply undeveloped, then the property owner has the right to make reasonable use of the land and that is generally defined by the local zoning ordinance. Preserving it when the bulldozers appear is usually too late, so it’s a good idea to work with a local land trust or local government if the land in question has environmental attributes that would enhance the whole community by preservation when it’s likely to become available..
When land has been permanently conserved by a land trust or conservancy, the job of making sure it stays open “in perpetuity” is usually written into a legal document called a “conservation easement” recorded against the title to the property so that no developer can buy it, subdivide it, and build a new development on it. The land conservancy has the duty of making sure that deed restriction is honored.
When the open land belongs to your township or borough, there are state laws that can stop a local government from changing the open space use.
Recently, Timoney Knox LLP Partner Kate Harper, a former legislator very familiar with these laws, won a case brought by neighbors of a farm they thought was permanently preserved because it was purchased with open space tax money when the new board of the township decided to build a municipal complex on it instead of letting it be farmed. When their advocacy was ignored, they brought a lawsuit.
In Matthew E. Murray and Nathaniel Guest v. Trace Slinkerd and the Upper Pottsgrove Board of Commissioners, 162 Montgomery County Law Reporter 457 (2025), after a trial, the Court unequivocally ruled that “if a municipality could acquire land by open-space tax revenue, but then decide to develop the land for another purpose, it would betray the bargain that the elected representatives made with the public—i.e. if you, the public, are willing to be taxed an additional amount in order to acquire and preserve open space in our community, then we elected representatives will use the tax revenues solely for that limited purpose.”
At trial, the neighbors had to prove that (1) the voters had approved an Open Space Tax referendum in 2006 to tax themselves to preserve open space (2) in 2008, the then Upper Pottsgrove Board of Commissioners purchased several large properties, including the Smola Farm, for open space and (3) open space tax revenues were used for the purchase, because they were designated to repay a bond issue for that purpose that generated extra revenue at a time the Commissioners wisely predicted the price of land would only increase thereafter and made several purchases. The Court then ruled, “The construction and operation of the [planned] municipal complex would substantially detract from and materially impair the open space benefits of the Smola Farm in a manner inconsistent with the intent under which the property was acquired,” noting, “That finding is amply supported in the record.”
In the Smola Farm case, not even twenty years had elapsed since the voters approved an open space tax, and the Township was still collecting it. The neighbors were shocked that the 2024 Commissioners would simply decide to build a municipal complex on the open space land they thought was permanently conserved. Two of them, Matt Murray and Nathaniel Guest, with the help of former Commissioner Elwood Taylor, who had been on the Board in 2008, marshalled the facts and evidence to prove their point that land purchased with open space tax money should only be used for open space. That is what the PA Open Space Lands Act, 32 P.S. 5001, a Pennsylvania state law, says. They are the real heroes of the Smola Farm story.
What can current Supervisors and Commissioners do to make sure this doesn’t happen to land they have purchased (or been given) as open space?
Well, they can work now with a land trust, local watershed conservation non-profit, or land conservancy to make sure an entity used to preserving land in perpetuity has the right to do it in the future when they are no longer elected officials and the view of the board about the value of the open space might change. A conservation easement can be recorded in favor of the land trust on the title to the land.
The Township itself could record a conservation easement on the land whether it was preserved with open space tax money or not. A deed restriction noting that the purchase of the land was with open space tax revenues would help neighbors enforce the law’s restrictions, but any deed restriction would confirm the intention of the current Board as to the use of the land as permanently conserved open space or a farm or a park. WeConservePA, a nonprofit dedicated to helping preserve land, has a Model Declaration of Public Trust in its library that will help a local government do this.
Even if the land were not purchased with open space tax revenues but was still meant to be used as a park or open land, Pennsylvania’s Donated or Dedicated Property Act requires Orphan’s Court approval to change its use:
The Donated or Dedicated Property Act (DDPA) deems lands situated within a political subdivision which have been dedicated to the public use as a public facility as held by the political subdivision, as trustee, for the benefit of the public with full legal title in the said trustee. 53 Pa. Stat. Ann. § 3382. The DDPA further requires that all such lands held by a political subdivision, as trustee, shall be used for the purpose or purposes for which they were originally dedicated except insofar as modified by court order pursuant to the act. 53 Pa. Stat. Ann. § 3383. The DDPA sets forth the conditions and process for such court ordered modification in 53 Pa. Stat. Ann. § 3384, which permits a political subdivision to petition the orphans’ court for relief from its obligations as trustee of property held in trust as a public facility when, in the opinion of the political subdivision which is the trustee, the continuation of the original use of the particular property held in trust as a public facility is no longer practicable or possible and has ceased to serve the public interest. In re Downingtown, 639 Pa. 673 *; 161 A.3d 844 **; 2017 Pa. LEXIS 1395 ***; 2017 WL 2645399.
That would be tough to prove.
So what can the neighbors do?
Pay attention and participate in the local government meetings. Urge the Supervisors, Borough Council or Commissioners to take steps now to be sure the land acquired as a park or open space is forever preserved as open space and then, be prepared to step up when the land is threatened with development.
And, if you can, organize your neighbors like Matt Murray and Nathaniel Guest did, because they were willing to speak up to a board that failed to protect their open space and take action the court. The Court agreed.
