Judge rules against open space theft in Upper Pottsgrove

UPPER POTTSGROVE — A judge ruled Friday that the township’s plan to build a community complex at Smola Farm would violate the state’s open space law.

“Thank God,” said resident Matt Murray, who along with resident Nathaniel Guest filed the lawsuit last February to stop the development from being built on what is now considered protected open space. “Our prayers were answered and justice prevailed.”

“I am grateful and this reaffirms my faith in the judicial process and the idea that citizens can have a voice,” Guest said.

“And I am in awe of what it took to get to this victory, that we had someone like Matt Murray who could fully commit to this issue and was willing to push through seemingly endless right-to-action in to penetrate the community’s events – applications, many of which he had to appeal; having an attorney like Kate Harper, who did a lot of this work on a pro bono basis, who helped draft this law and wanted to make sure that it didn’t set a precedent that a municipality could adopt an open space tax and make it a fair one, another piggy bank , so that they can do whatever they want; and that the promises made to Tommy Smola regarding this land would not be ignored,” Guest said.

“This decision is important in its impact. Local governments across the state have been watching this happen,” said Harper, who as a former state representative was instrumental in updating the Open Space Act and its passage.

“Nobody likes to raise taxes, and I thought we made it abundantly clear when we wrote this law that the commissioners of a municipality, including Upper Pottsgrove, shouldn’t be able to say we won’t do it if voters have to agree to it follow that.’ That’s not right,” Harper said.

precedent set

The immediate result of the 10-page ruling in the lawsuit prohibits the township from soliciting and accepting offers for the complex.

The township sought bids as a result of a 3-2 vote by commissioners in August. Before the Aug. 19 vote, several speakers, including Commissioner Dave Waldt, who voted “no,” told commissioners it would be wiser to wait for the litigation over the project to be resolved or the township could face the cost of the project Demolition of the new project will dismantle it if it loses the case.

It is unknown at this time whether the lawsuit has been “settled” or whether the commissioners will appeal the ruling.

Of the five commissioners, only Commissioner Cathy Paretti, who has also consistently voted against the township moving forward with this project, was the only one to respond to The Mercury’s email request for comment on Friday.

“This decision is a victory not only for the residents of Upper Pottsgrove, but also for the preservation of open space throughout Pennsylvania,” Paretti wrote. “It also highlights the importance of transparent government, which can avoid many costly problems. Going forward, it will take a concerted effort from the entire Board of Commissioners to work openly and collaboratively with community staff, committees and vendors to find solutions to the increasingly complex challenges we face as a community.”

The committee’s next meeting will be Monday, Oct. 21, and the matter of the lawsuit and the new community complex is not on the agenda.

Judge orders project stop

In his ruling, Judge Jeffrey Saltz of the Court of Common Pleas imposed an injunction against the township to prevent the project from moving forward

Saltz rejected the township’s argument that open space funds were not used to purchase the 36-acre Smola Farm at Evans and West Moyer roads because the bond used to raise money was refinanced with general funds. Therefore, according to the municipality’s justification, the Open Space Act is not applicable.

“It is irrelevant that the open space tax revenue was not used directly to pay the purchase price of Smola Farm. but rather served to secure payment of the debts incurred for the takeover,” Saltz wrote. He said state law specifically allows this.

“It is also irrelevant that the ‘Open Space Fund’ from which the purchase price was paid included both the proceeds of the 2008 bonds and general tax revenues transferred to this fund.” It was the municipality that did so made the decision to consolidate those funds into a single account, and having done so, it cannot complain that plaintiffs were unable to prove which funds in that account were used to purchase Smola Farm,” Saltz wrote .

The commissioners were right to believe they were acting within the law, the judge wrote.

“The evidence does not indicate that the commissioners acted in bad faith or with disregard for the open space benefits provided by Smola Farm,” Saltz’s decision said. “On the contrary, they followed the advice of the municipal attorney that the construction of the municipal complex was legally permissible and planned to improve the open space on the rest of the property.

“However, the evidence also demonstrates that the construction and operation of the community complex would significantly interfere with and significantly impair the open space benefits of Smola Farm in a manner inconsistent with the intent with which the property was acquired,” Saltz wrote .

Choice of voters

Saltz also championed the wishes of voters who voted in 2006 to impose an earned income tax to raise money to purchase and protect open space.

“If a municipality could acquire land through the use of this open space revenue but then chooses to use the land for another purpose, that would betray the public’s decision to be subject to an additional tax for a single limited purpose,” he wrote .

It’s no coincidence that Saltz’s argument was similar to points made by members of the public who have repeatedly warned commissioners to hold off on their efforts to construct the building until the litigation is resolved.

Even before the lawsuit was filed, residents have attended meetings objecting to the project since it was first unveiled to the public in August 2022, and farm signs reading “Save Smola Farm” can be seen throughout the city .

The project and the associated process have become increasingly expensive.

When the board first voted 3-2 to implement the plan, the estimated cost of the project was estimated at $5.5 million. But last year, estimates for the entire complex to be completed climbed to $8.8 million.

The costs are piling up

During his testimony, Commissioner Chairman Trace Slinker revealed that the township had already spent about $800,000 on engineering and plans for the complex. Additionally, as of July, the township had spent nearly $135,000 in legal fees on the case.

As for the plaintiffs, while Murray and Guest won their case, they were unsuccessful in asking the township to pay their legal fees, totaling at least $27,000, according to Murray, some of which was paid through fundraising efforts.

Originally published: October 19, 2024 at 9:51 am