PRINTER'S NO. 2475
No. 1910 Session of 2001
INTRODUCED BY BARD, CORNELL, HERMAN, PIPPY, SOLOBAY, M. DAILEY,
M. BAKER, BELFANTI, BUNT, CAPPELLI, CAWLEY, L. I. COHEN,
M. COHEN, CREIGHTON, CURRY, GEORGE, GODSHALL, McGILL, SAYLOR,
STABACK, E. Z. TAYLOR, TIGUE, VITALI, M. WRIGHT, YOUNGBLOOD,
FREEMAN AND CORRIGAN, SEPTEMBER 18, 2001
REFERRED TO COMMITTEE ON LOCAL GOVERNMENT, SEPTEMBER 18, 2001
AN ACT
1 Amending the act of January 19, 1968 (1967 P.L.992, No.442),
2 entitled, as amended "An act authorizing the Commonwealth of
3 Pennsylvania and the local government units thereof to
4 preserve, acquire or hold land for open space uses," adding
5 provisions relating to mitigation of flood hazards.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Sections 1, 2, 3, 4, 5 and 7 of the act of
9 January 19, 1968 (1967 P.L.992, No.442), entitled, as amended
10 "An act authorizing the Commonwealth of Pennsylvania and the
11 local government units thereof to preserve, acquire or hold land
12 for open space uses, amended December 18, 1996 (P.L.994,
13 No.153), are amended to read:
14 Section 1. Statement of Legislative Intent.--It is the
15 purpose of this act to clarify and broaden the existing methods
16 by which the Commonwealth and its local government units may
17 preserve land in or acquire land for open space uses. The
18 Legislature finds that it is important to preserve open space
1 and to meet needs for recreation, amenity, and conservation of
2 natural resources, including farm land, forests, and a pure and
3 adequate water supply. The General Assembly further finds that
4 the acquisition of property that is either located in areas
5 having special flood hazards or other areas of flood risk or
6 that is substantially damaged by flood, not only would reduce
7 future risk of flood damages but also would advance the purposes
8 of this act. The acquisition and resale of property interests
9 authorized by this act are hereby declared to be for the public
10 benefit, for the advancement of the public health, safety,
11 morals and general welfare of the citizens of the Commonwealth,
12 and for the promotion of sound land development by preserving
13 suitable open space and concentrating more dense development in
14 nearby areas.
15 Section 2. Definitions.--For the purpose of this act the
16 following definitions shall apply:
17 (1) "Open space benefits." The benefits to the citizens of
18 the Commonwealth and its local government units which result
19 from the preservation or restriction of the use of selected
20 predominantly undeveloped open spaces or areas, including but
21 not limited to: (i) the protection and conservation of water
22 resources and watersheds, by appropriate means, including but
23 not limited to preserving the natural cover, preventing floods
24 and soil erosion, protecting water quality and replenishing
25 surface and ground water supplies; (ii) the protection and
26 conservation of forests and land being used to produce timber
27 crops; (iii) the protection and conservation of farmland; (iv)
28 the protection of existing or planned park, recreation or
29 conservation sites; (v) the protection and conservation of
30 natural or scenic resources, including but not limited to soils,
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1 beaches, streams, flood plains, steep slopes or marshes; (vi)
2 the protection of scenic areas for public visual enjoyment from
3 public rights of way; (vii) the preservation of sites of
4 historic, geologic or botanic interest; (viii) the promotion of
5 sound, cohesive, and efficient land development by preserving
6 open spaces between communities[.]; and (ix) the promotion of
7 open space benefits through the mitigation of flood hazards.
8 (2) "Interest in real property." Any right in real property,
9 improvements thereto or water, whatsoever, including but not
10 limited to a fee simple, easement, remainder, future interest,
11 transferable development right (TDR), lease, license,
12 restriction or covenant of any sort, option or contractual
13 interest or right concerning the use of or power to transfer
14 property.
15 (3) "Open space property interests." Any interest in real
16 property acquired hereunder for the purpose of achieving open
17 space benefits.
18 (4) "Open space uses." Land uses which are not inconsistent
19 with the achievement of open space benefits.
20 (5) "Local government unit."
21 (i) A county;
22 (ii) a county authority having among the purposes for which
23 it was created the achievement of one or more of the open space
24 benefits set forth in this section;
25 (iii) a municipal corporation as defined in 1 Pa.C.S. § 1991
26 (relating to definitions) or any similar general purpose unit of
27 local government; or
28 (iv) any unit created by joint action of two or more local
29 government units which is now or shall hereafter be authorized
30 to be created by the General Assembly, including cooperation by
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1 two or more local government units in accordance with [the act
2 of July 12, 1972 (P.L.762, No.180), referred to as the
3 Intergovernmental Cooperation Law.] 53 Pa.C.S. Ch. 23 Subch. A
4 (relating to intergovernmental cooperation).
5 (6) "Planning commission." A local board, commission or
6 agency which has been designated by the governing body of a
7 local government unit to establish and foster a comprehensive
8 plan for land management and development with the local
9 government unit.
10 (7) "Transferable development right" or "TDR." The
11 attaching of development rights to specified lands which are
12 desired by a local government unit to be kept undeveloped, but
13 permitting those rights to be transferred from those lands so
14 that the development potential which they represent may occur on
15 other lands where more intensive development is deemed to be
16 appropriate.
17 (8) "Flood Mitigation Assistance Program." The Federal
18 program authorized by sections 1366 and 1367 of the National
19 Flood Insurance Act of 1968 (Public Law 90-448, 42 U.S.C. §§
20 4104c and 4104d) and regulations appertaining thereto.
21 (9) "Hazard Mitigation Grant Program." The Federal program
22 pursuant to which hazard mitigation grants are made under the
23 provisions of section 404 of The Robert T. Stafford Disaster
24 Relief and Emergency Assistance Act (Public Law 93-288, 42
25 U.S.C. § 5170c) and regulations appertaining thereto.
26 (10) "Mitigation of flood hazards." The acquisition of
27 property located in areas having special flood hazards or other
28 areas of flood risk and of property substantially damaged by
29 flood in accordance with or supplementary to the Hazard
30 Mitigation Grant Program or the Flood Mitigation Assistance
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1 Program. Property acquired to mitigate flood hazards shall be
2 used in a manner compatible with open space, recreational or
3 wetland management practices, including parks for outdoor
4 recreational activities, nature reserves, cultivation, grazing,
5 camping, buffer zones and other uses consistent with the use
6 restrictions of the Hazard Mitigation Grant Program and the
7 Flood Mitigation Assistance Program.
8 Section 3. Planning Requirements.--(a) Except for the
9 mitigation of flood hazards, the conditions set forth in
10 subsection (b) shall apply.
11 (b) The Department of Conservation and Natural Resources and
12 the Department of Agriculture shall not acquire any interest in
13 real property under the provisions of this act, unless said real
14 property has been designated for open space uses in a resource,
15 recreation, or land use plan submitted to and approved by the
16 State Planning Board. A local government unit shall not acquire
17 any interest in real property under the provisions of this act
18 unless said real property has been designated for open space
19 uses in a resource, recreation or land use plan recommended by
20 the planning commission of the municipality in which the real
21 property is located and adopted by the governing body of that
22 municipality. Where the municipality in which the real property
23 to be acquired is located has no planning commission, a local
24 government unit shall not acquire any interest in real property
25 under the provisions of this act unless said real property has
26 been designated for open space uses in a resource, recreation or
27 land use plan approved by the planning commission of the county
28 in which the real property is located and adopted by the
29 governing body of the municipality wherein the real property is
30 located.
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1 Section 4. Applicability.--[The] Except for the mitigation
2 of flood hazards, the Commonwealth of Pennsylvania, through the
3 Department of Conservation and Natural Resources or the
4 Department of Agriculture, may exercise the powers granted by
5 this act only with the consent of the county commissioners of
6 the county in which the real property is situated. All local
7 government units may exercise the powers granted by this act.
8 Section 5. Acquisition of Interests in Real Property.--(a)
9 The Commonwealth of Pennsylvania, through the Department of
10 Conservation and Natural Resources, may acquire any interest in
11 real property by purchase, contract, condemnation, gift, devise
12 or otherwise, for any of the following purposes:
13 (1) To protect and conserve water resources and watersheds;
14 (2) To protect and conserve forests and land being used to
15 produce timber crops;
16 (3) To protect an existing or planned park, forest, wildlife
17 preserve, nature reserve or other recreation or conservation
18 site by controlling the use of contiguous or nearby lands in
19 order to protect the scenic, aesthetic or watershed values of
20 the site;
21 (4) To protect and conserve natural or scenic resources,
22 including but not limited to soils, beaches, streams, flood
23 plains or marshes;
24 (5) To protect scenic areas for public visual enjoyment from
25 public rights of way;
26 (6) To preserve sites of historic, geologic or botanic
27 interest;
28 (7) To promote sound, cohesive, and efficient land
29 development by preserving open spaces between communities;
30 (8) To limit the use of the real property so as to achieve
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1 open space benefits by reselling real property acquired in fee
2 simple, subject to restrictive covenants or easements limiting
3 the use thereof for the purposes specified in clauses (1)
4 through (7) hereof[.]; and
5 (9) To promote the mitigation of flood hazards.
6 (b) The Commonwealth of Pennsylvania, through the Department
7 of Agriculture, may acquire any interest in real property by
8 purchase, contract, gift, or devise for any of the following
9 purposes:
10 (1) To protect and conserve farmland;
11 (2) To protect and conserve water resources and watersheds;
12 (3) To limit the use of real property so as to achieve open
13 space benefits by reselling real property acquired in fee
14 simple, subject to restrictive covenants or easements limiting
15 the use thereof for the purposes specified in clauses (1) and
16 (2) hereof.
17 (c) (1) A local government unit may acquire any interest in
18 real property situate within its boundaries by purchase,
19 contract, condemnation, gift, devise or otherwise, for any of
20 the purposes set forth in clauses (1) through [(8)] (9) of
21 subsection (a) of this section, and may acquire any interest in
22 real property situate within its boundaries by purchase,
23 contract, gift or devise, for any of the purposes set forth in
24 clause (1) of subsection (b) of this section, including limiting
25 the use of real property to achieve open space benefits by
26 reselling real property acquired in fee simple, subject to
27 restrictive covenants or easements limiting the use thereof for
28 the purposes set forth in clauses (1) through (7) of subsection
29 (a) and clause (1) of subsection (b) of this section.
30 (2) During the time that real property or any interest in
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1 real property acquired by a local government unit for open space
2 purposes in accordance with this act is held by the local
3 government unit, the real property shall be ineligible for the
4 purchase of agricultural conservation easements authorized in
5 the act of June 30, 1981 (P.L.128, No.43), known as the
6 "Agricultural Area Security Law."
7 (d) The power to acquire interest in real property to
8 promote the mitigation of flood hazards shall include the power
9 to provide for the demolition of structures on, or the
10 relocation of structures from, the property acquired.
11 Section 7. Property Acquired in Fee Simple.--If the owner of
12 the interests in real property to be acquired pursuant to the
13 provisions of this act prefers to have the Commonwealth or the
14 local government unit acquire the property in fee simple, the
15 Commonwealth or the local government unit shall be required to
16 acquire the property in fee simple. [All] Except for the
17 mitigation of flood hazards, all real property acquired in fee
18 simple by the Commonwealth, through either the Department of
19 Conservation and Natural Resources or the Department of
20 Agriculture, or by a local government unit, under the provisions
21 of this act, shall be offered for resale publicly in the manner
22 provided by law within two years of the date of acquisition,
23 subject to restrictive covenants or easements limiting the land
24 to such open space uses as may be specified by the designating
25 department or agency in accordance with section 6 hereof, and
26 consistent with the resource, recreation, or land use plan
27 established in accordance with section 4 hereof. In the case of
28 the Commonwealth, such resales may be made without specific
29 authority of the General Assembly and shall be through the
30 Department of General Services at public sale in the manner
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1 provided by law.
2 Section 2. Section 7.1(a) of the act, added December 18,
3 1996 (P.L.994, No.153), is amended and the section is amended by
4 adding a subsection to read:
5 Section 7.1. Local Taxing Options.--(a) [A] Except as
6 provided in subsection (a.1), a local government unit, excluding
7 counties and county authorities, may by ordinance impose, in
8 addition to the statutory rate limits on real estate taxes set
9 forth in the municipal code of that local government unit, a tax
10 on real property not exceeding the millage authorized by
11 referendum under this subsection. In the alternative, a local
12 government unit, excluding counties and county authorities, may
13 by ordinance impose, in addition to the earned income tax rate
14 limit set forth in the act of December 31, 1965 (P.L.1257,
15 No.511), known as "The Local Tax Enabling Act," a tax on the
16 earned income of the residents of that local government unit not
17 exceeding the rate authorized by referendum under this
18 subsection. Revenue from the levy shall be used to retire the
19 indebtedness incurred in purchasing interests in real property
20 or in making additional acquisitions of real property for the
21 purpose of securing an open space benefit or benefits under the
22 provisions of this act or the act of June 30, 1981 (P.L.128,
23 No.43), known as the "Agricultural Area Security Law." The local
24 taxing option authorized by this subsection shall not be
25 exercised unless the governing body of the local government unit
26 shall by ordinance first provide for a referendum on the
27 question of the imposition at a specific rate of the additional
28 tax to be imposed and a majority of those voting on the
29 referendum question vote in favor of the imposition of the tax.
30 The ordinance of the governing board of the local government
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1 unit providing for a referendum on the question shall be filed
2 with the county board of elections. The referendum shall be
3 governed by the provisions of the act of June 3, 1937 (P.L.1333,
4 No.320), known as the "Pennsylvania Election Code." The election
5 official shall cause the question to be submitted to the
6 electors of the local government unit at the next primary,
7 general or municipal election occurring not less than the
8 thirteenth Tuesday following the filing of the ordinance with
9 the county board of elections. At such election, the question
10 shall be submitted to the voters in the same manner as other
11 questions are submitted under the provisions of the
12 "Pennsylvania Election Code." The question to be placed upon the
13 ballot shall be framed in the following form:
14 Do you favor the imposition of a (describe tax in millage
15 or rate) by (local government unit) to be used to
16 (purpose)?
17 (a.1) In addition to the statutory rate limits on real
18 estate taxes provided for counties generally, a county may, in
19 accordance with and for the purposes set forth in subsection
20 (a), impose a tax on real property not exceeding the millage
21 authorized by referendum as required by subsection (a).
22 * * *
23 Section 3. Sections 7.2(a) and 7.3 of the act, added
24 December 18, 1996 (P.L.994, No.153), are amended to read:
25 Section 7.2. Procedures to be Followed in Connection with
26 Acquisition of Real Property or Open Space Property Interests.--
27 (a) [A] Except for the mitigation of flood hazards, a local
28 government unit shall not acquire interests in real property
29 pursuant to this act unless that local government unit has by
30 ordinance or resolution established procedures for reviewing
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1 open space property interests considered for acquisition by the
2 local government unit, for rating the relative desirability of
3 interests in particular parcels of real estate and for
4 establishing the price the local government unit will pay.
5 * * *
6 Section 7.3. Borrowing Generally and the Acquisition of Open
7 Space Property Interests on an Installment Basis.--[A] Local
8 government units that are governed by 53 Pa.C.S. Pt. VII Subpt.
9 B (relating to indebtedness and borrowing) may incur
10 indebtedness under 53 Pa.C.S. Pt. VII Subpt. B for the purposes
11 of acquiring open space property interest in accordance with
12 this act, and a local government unit may authorize the
13 establishment of a program to purchase open space property
14 interests on an installment or other deferred basis. The
15 obligation of the local government unit to make payments on an
16 installment or other deferred basis shall not be subject to the
17 requirements of [section 602(b) or (c) of the act of July 12,
18 1972 (P.L.781, No.185), known as the "Local Government Unit Debt
19 Act."] 53 Pa.C.S. § 8142(b) or (c) (relating to limitations on
20 stated maturity dates). A landowner who enters into an
21 installment agreement with a local government unit shall
22 receive, in addition to the selling price, interest in an amount
23 or at a rate set forth in the purchase agreement.
24 Section 4. Sections 8 and 10 of the act, amended December
25 18, 1996 (P.L.994, No.153), are amended by adding subsections to
26 read:
27 Section 8. Exercise of Eminent Domain.--* * *
28 (c) An exercise of the power of eminent domain for the
29 purposes of this act shall be subject to restrictions and
30 limitations imposed by Federal or State law.
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1 Section 10. Termination or Disposition of Open Space
2 Property Interests.--* * *
3 (c) The authority to terminate or dispose of open space
4 property interests in accordance with this section shall be
5 subject to restrictions and limitations imposed by Federal or
6 State law.
7 Section 5. This act shall take effect in 60 days.
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