PRINTER'S NO. 1604
No. 1320 Session of 1995
INTRODUCED BY HECKLER, GERLACH, HELFRICK, AFFLERBACH, ULIANA,
HART AND SCHWARTZ, NOVEMBER 29, 1995
REFERRED TO LOCAL GOVERNMENT, NOVEMBER 29, 1995
AN ACT
1 Amending the act of January 19, 1968 (1967 P.L.992, No.442)
2 entitled "An act authorizing the Commonwealth of Pennsylvania
3 and the counties thereof to preserve, acquire or hold land
4 for open space uses," expanding its scope to include all
5 local government units throughout this Commonwealth; adding
6 definitions for "local government unit," "planning
7 commission" and "transferable development rights"; providing
8 for local option and for transferable development rights; and
9 further providing for planning requirements, for limitations
10 on exercise of powers, for acquisitions of real property
11 interests, for public hearings, for property acquired in fee
12 simple, for assessment of property, for termination or other
13 disposition of open space property interests, and for utility
14 rights-of-way and underground gas storage areas.
15 The General Assembly of the Commonwealth of Pennsylvania
16 hereby enacts as follows:
17 Section 1. The title of the act of January 19, 1968 (1967
18 P.L.992, No.442), entitled "An act authorizing the Commonwealth
19 of Pennsylvania and the counties thereof to preserve, acquire or
20 hold land for open space uses" is amended to read:
21 AN ACT
22 Authorizing the Commonwealth of Pennsylvania and the [counties]
23 local government units thereof to preserve, acquire or hold
1 land for open space uses.
2 Section 2. Section 1 of the act is amended to read:
3 Section 1. Statement of Legislative Intent.--It is the
4 purpose of this act to clarify and broaden the existing methods
5 by which the Commonwealth may preserve land in or acquire land
6 for open space uses. The Legislature finds that it is important
7 to preserve open space [in and near urban areas] and to meet
8 needs for recreation, amenity, and conservation of natural
9 resources, including farm land, forests, and a pure and adequate
10 water supply. The acquisition and resale of property interests
11 authorized by this act are hereby declared to be for the public
12 benefit, for the advancement of the public health, safety,
13 morals and general welfare of the citizens of the Commonwealth,
14 and for the promotion of sound land development by preserving
15 suitable open space and concentrating more dense development in
16 nearby areas.
17 Section 3. Section 2(5) of the act is amended and the
18 section is amended by adding clauses to read:
19 Section 2. Definitions.--For the purpose of this act the
20 following definitions shall apply:
21 * * *
22 (5) ["County." A county, or a county authority having among
23 the purposes for which it was created the achievement of one or
24 more of the open space benefits set forth in this section.]
25 "Local government unit." A county, city, borough,
26 incorporated town, township, school district, any other unit of
27 local government with a similar general or limited purpose as
28 the specified units, or a unit which has been created by joint
29 action of two or more local government units or which shall be
30 authorized to be created by the General Assembly.
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1 (6) "Planning commission." A local board, commission or
2 agency which has been designated by the governing body of a
3 local government unit to establish and foster a comprehensive
4 plan for land management and development with the local
5 government unit.
6 (7) "Transferable development right," or "TDR." The
7 attachment of development rights to specified lands which are
8 desired by a local government unit to be kept undeveloped;
9 provided, however, that the agreement contains a clause which
10 permits those rights to be transferred from those lands so that
11 the development potential which they represent may occur on
12 other lands where more intensive development is deemed to be
13 appropriate.
14 Section 4. Sections 3, 4, 5, 6, 7 of the act are amended to
15 read:
16 Section 3. Planning Requirements.--The Department of
17 [Forests and Waters] Conservation and Natural Resources and the
18 Department of Agriculture shall not acquire any interest in real
19 property under the provisions of this act, unless said real
20 property has been designated for open space uses in a resource,
21 recreation, or land use plan submitted to and approved by the
22 State Planning Board. [A county shall not acquire any interest
23 in real property under the provisions of this act unless said
24 real property has been designated for open space uses in a
25 resource, recreation or land use plan approved by the County
26 Planning Commission.] No interest in real property shall be
27 acquired under the provisions of this act by a county or, where
28 the local government unit in which the real property is located
29 has no planning commission, by any other local government unit,
30 unless the real property has been designated for open space uses
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1 in a resource, recreation or land use plan approved by the
2 county planning commission and adopted by the governing body of
3 that local government unit. In all other cases where an
4 acquisition of an interest in real property is to be made by a
5 local government unit in accordance with this act, the real
6 property shall have been designated for open space uses in a
7 resource, recreation or land use plan approved by the planning
8 commission of the local government unit in which the real estate
9 is located and adopted by the governing body of that local
10 government unit.
11 Section 4. Applicability.--The Commonwealth of Pennsylvania,
12 through the Department of [Forests and Waters] Conservation and
13 Natural Resources or the Department of Agriculture, may exercise
14 the powers granted by this act only with the consent of the
15 county commissioners of the county in which the real property is
16 situated. All [counties] local government units may exercise the
17 powers granted by this act, without limitation as to area.
18 Section 5. Acquisition of Interests in Real Property.--(a)
19 The Commonwealth of Pennsylvania, through the Department of
20 [Forests and Waters] Conservation and Natural Resources, may
21 acquire any interest in real property by purchase, contract,
22 condemnation, gift, devise or otherwise, for any of the
23 following purposes:
24 (1) To protect and conserve water resources and watersheds;
25 (2) To protect and conserve forests and land being used to
26 produce timber crops;
27 (3) To protect an existing or planned park, forest, wildlife
28 preserve, nature reserve or other recreation or conservation
29 site by controlling the use of contiguous or nearby lands in
30 order to protect the scenic, aesthetic or watershed values of
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1 the site;
2 (4) To protect and conserve natural or scenic resources,
3 including but not limited to soils, beaches, streams, flood
4 plains or marshes;
5 (5) To protect scenic areas for public visual enjoyment from
6 public rights of way;
7 (6) To preserve sites of historic, geologic or botanic
8 interest;
9 (7) To promote sound, cohesive, and efficient land
10 development by preserving open spaces between communities;
11 (8) To limit the use of the real property so as to achieve
12 open space benefits by reselling real property acquired in fee
13 simple, subject to restrictive covenants or easements limiting
14 the use thereof for the purposes specified in clauses (1)
15 through (7) hereof.
16 (b) The Commonwealth of Pennsylvania, through the Department
17 of Agriculture, may acquire any interest in real property by
18 purchase, contract, gift, or devise for any of the following
19 purposes:
20 (1) To protect and conserve farmland;
21 (2) To protect and conserve water resources and watersheds;
22 (3) To limit the use of real property so as to achieve open
23 space benefits by reselling real property acquired in fee
24 simple, subject to restrictive covenants or easements limiting
25 the use thereof for the purposes specified in clauses (1) and
26 (2) hereof.
27 (c) [Counties] A local government unit may acquire any
28 interest in real property situate within its boundaries by
29 purchase, contract, condemnation, gift, devise or otherwise, for
30 any of the purposes set forth in clauses (a) (1) through (a) (8)
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1 of this section, and may acquire any interest in real property
2 situate within its boundaries by purchase, contract, gift or
3 devise, for any of the purposes set forth in clause (b) (1) of
4 this section.
5 Section 6. Public Hearing.--Interests in real property to be
6 acquired pursuant to the provisions of this act shall be
7 designated by the Department of [Forests and Waters]
8 Conservation and Natural Resources, the Department of
9 Agriculture or [the county] a local government unit, whichever
10 is acquiring them. After such designation, the said interests
11 shall not be acquired until a public hearing is held and after
12 notice to all owners of said interests in real property and to
13 [the municipalities in which county said interests in real
14 property are located, in each county where the land is situate]
15 any local government unit, at which hearing the department or
16 [county] local government unit concerned shall set forth the
17 interests to be taken and their proposed open space benefits. At
18 the public hearing persons and municipalities affected by the
19 proposed acquisition of interests in real property shall have an
20 opportunity to present relevant evidence.
21 Section 7. Property Acquired in Fee Simple.--If the owner of
22 the interests in real property to be acquired pursuant to the
23 provisions of this act prefers to have the Commonwealth or the
24 [county] local government unit acquire the property in fee
25 simple, the Commonwealth or the [county] local government unit
26 shall be required to acquire the property in fee simple. All
27 real property acquired in fee simple by the Commonwealth,
28 through either the Department of [Forests and Waters]
29 Conservation and Natural Resources or the Department of
30 Agriculture, or by a [county] local government unit, under the
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1 provisions of this act, shall be offered for resale publicly in
2 the manner provided by law within two years of the date of
3 acquisition, subject to restrictive covenants or easements
4 limiting the land to such open space uses as may be specified by
5 the designating department or agency in accordance with section
6 6 hereof, and consistent with the resource, recreation, or land
7 use plan established in accordance with section 4 hereof. In the
8 case of the Commonwealth, such resales may be made without
9 specific authority of the General Assembly and shall be through
10 the Department of [Property and Supplies] General Services at
11 public sale in the manner provided by law.
12 Section 5. The act is amended by adding a section to read:
13 Section 7.1 Local Option.--(a) Before acquiring farmland
14 preservation and conservation easements, a local government
15 unit, by ordinance or resolution, shall develop procedures for
16 the review of such easements offered to the local government
17 unit, the rating of desirability and the price the local
18 government unit will pay per acre of such easement.
19 (b) A local government unit may authorize the establishment
20 of a program to purchase farmland preservation and conservation
21 easements on an installment or other deferred basis. The
22 obligation of the local government unit to make payments on an
23 installment or other deferred basis shall not be subject to the
24 requirements of subsection (b) or (c) of section 602 of the act
25 of July 12, 1972 (P.L.781, No.185), known as the "Local
26 Government Unit Debt Act." A landowner who enters into an
27 installment agreement with a local government unit shall
28 receive, in addition to the selling price, interest in an amount
29 or at a rate set forth in the purchase agreement. Final payment
30 shall be made within, and no later than, thirty years from the
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1 date the farmland preservation and conservation easement
2 purchase agreement was fully executed.
3 (c) A local government unit, excluding school districts, may
4 by ordinance or resolution levy, in addition to the statutory
5 rate limits on real estate taxes set forth in the municipal code
6 of that local government unit a tax not exceeding four mills. In
7 the alternative, the local government unit may levy, in addition
8 to the earned income tax rate limit set forth in the act of
9 December 31, 1965 (P.L.1257, No.511), known as "The Local Tax
10 Enabling Act," a tax of two-tenths of one percent on earned
11 income. Revenue from the levy shall be used only to retire the
12 indebtedness incurred in purchasing farmland preservation and
13 conservation easements pursuant to the "Local Government Unit
14 Debt Act" or in making other acquisitions prescribed under
15 section 5(c) insofar as that prescription relates to clause
16 (b)(1) of section 5. The levy may not be imposed until the local
17 government unit first obtains the assent of fifty-one percent of
18 the electors in that local government unit voting on the new tax
19 levy. The assent shall be expressed at an election to be held at
20 the place and time of any general, municipal, special or primary
21 election. At such election, the electors shall cast their votes
22 upon ballots prepared in the manner prescribed by the act of
23 June 3, 1937 (P.L.1333, No.320), known as the "Pennsylvania
24 Election Code."
25 (d) Before a school district may acquire an interest in real
26 estate as prescribed under section 5(c) insofar as that
27 prescription relates to clause (b)(1) of section 5, it must
28 first obtain the assent of fifty-one percent of the electors in
29 the district. The assent shall be expressed at an election to be
30 held at the place and time of any general, municipal, special or
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1 primary election. At such election, the electors shall cast
2 their votes upon ballots prepared in the manner prescribed by
3 the "Pennsylvania Election Code."
4 (e) When a local government unit acquires an interest in
5 real property as authorized by this section, it shall establish
6 and maintain a respository of records of the interests in real
7 property which have been or are acquired by the local government
8 unit and which are located within the local government unit. The
9 local government unit shall also record each interest in real
10 property acquired by the local government unit in the office of
11 the recorder of deeds of the county wherein the real property is
12 located.
13 (f) A local government unit acquiring interests in real
14 property shall submit to the school district within which the
15 real property is located a copy of each farmland preservation
16 and conservation easement recording certified by the county
17 recorder of deeds.
18 (g) When a school district acquires an interest in real
19 property as set forth in clauses (a)(1) through (a)(8) or (b)(1)
20 of this section, it shall be required to first obtain the
21 approval of the governing body of the local government unit
22 wherein the real property is located, as provided for in section
23 3 of this act.
24 (h) The board of directors of a school district may, by
25 resolution, exempt all real property which is subject to a
26 farmland protection and conservation easement which has been
27 acquired by a local government unit under this act or which is
28 subject to a similar easement acquired under the act of June 30,
29 1981 (P.L.128, No.43), known as the "Agricultural Area Security
30 Law," from further millage increases imposed on real property
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1 due to budget increases. If the board so resolves, it shall
2 state in its resolution its intent to establish the millage
3 freeze, authorized herein, for all real property subject to such
4 easements, whether the local government unit acquired such
5 interests in real property prior to or subsequent to the date of
6 its resolution. For prior acquisitions, the date the millage
7 rate shall be frozen is the date of the resolution. For
8 subsequent acquisitions, the date the millage rate shall be
9 frozen is the date the local government unit completes the
10 acquisition. The school district shall give prompt notice to the
11 appropriate tax collection agent of the exact amount of the
12 millage, the date it was frozen, and the parcel to which the
13 freeze applies. The exemptions granted under this act shall not
14 be considered by the State Tax Equalization Board to derive the
15 market value of school district real property as to reduce the
16 subsidy to that school district or to increase the subsidy to
17 any other school district.
18 (i) Definition.--The term "farmland protection and
19 conservation easement" as used in this section means an interest
20 in land acquired in accordance with clause (c) of this section
21 for the purpose set forth in clause (b)(1) of this section,
22 which is less than a fee simple and which imposes limitations on
23 or affirmative obligations with regard to the use of the real
24 property so as to achieve the open space benefit of protecting
25 and conserving farmland.
26 Section 6. Section 8 of the act is amended to read:
27 Section 8. Exercise of Eminent Domain.--(a) Use of the
28 power of eminent domain to acquire interests in real property
29 for the purposes of this act shall be exercised in accordance
30 with the provisions of the Eminent Domain Code of the
19950S1320B1604 - 10 -
1 Commonwealth.
2 (b) Notwithstanding the provisions of subsection (a), local
3 government units may not exercise the power of eminent domain in
4 carrying out the provisions of this act.
5 Section 7. Sections 9 and 10 of the act are amended to read:
6 Section 9. Assessment.--Any open space property interest
7 acquired by the Commonwealth or a [county] local government unit
8 under this act is held for public purposes, and shall be exempt
9 from taxation. The assessment of private interests in land
10 subject to open space property interests under this act shall
11 reflect any change in market value of the property which may
12 result from the acquisition of open space property interests by
13 the Commonwealth or a [county] local government unit.
14 Section 10. Termination or Disposition of Open Space
15 Property Interests.--If the Commonwealth, through either the
16 Department of [Forests and Waters] Conservation and Natural
17 Resources or the Department of Agriculture with the approval of
18 the State Planning Board, or a [county] local government unit
19 with the approval of its [County Planning Commission] planning
20 commission, determines that it is essential for the orderly
21 development of an area to terminate or sell open space property
22 interests acquired under this act other than property held in
23 fee simple, the Commonwealth or the [county] local government
24 unit shall offer to transfer to the original property owner from
25 whom said property interests other than fee simple were
26 acquired, or his estate if the original property owner, or his
27 estate, is the current property owner, said property interests
28 at a price which shall be equal to the price paid by the
29 Commonwealth or the [county] local government unit to the
30 original property owner for said interests; and, if said offer
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1 is not accepted within ninety days, the Commonwealth or the
2 [county] local government unit shall then sell the open space
3 property interests at public sale in the manner provided by law.
4 In the case of the Commonwealth, such transfer or sale may be
5 made without specific authority of the General Assembly, and
6 shall be through the Department of [Property and Supplies]
7 General Services at public sale in the manner provided by law.
8 Section 8. The act is amended by adding a section to read:
9 Section 10.1 Transfer Development Rights.--If a TDR is
10 acquired under this act by a local government unit, it may be
11 disposed of in any manner approved by the planning commission
12 and adopted by the governing body of that local government unit.
13 Section 9. Section 11 of the act is amended to read:
14 Section 11. Utility Rights of Way; Underground Gas
15 Storage.--The ownership by the Commonwealth or a [county] local
16 government unit of an open space property interest shall not
17 preclude the acquisition, by lease, purchase, or eminent domain,
18 and use of rights of way or underground gas storage rights in
19 such property by a public utility or other body entitled to
20 exercise the power of eminent domain, if in the case of an
21 acquisition by a body other than a public utility the State
22 Planning Board, or, in the case of ownership by a [county, the
23 County Planning Commission] local government unit, its planning
24 commission, after notice to the Department of [Forests and
25 Waters] Environmental Protection or the Department of
26 Agriculture as the case may be, after public hearing, shall
27 approve such acquisition, or in the case of acquisition by a
28 public utility if the Pennsylvania Public Utility Commission,
29 after notice to the Department of [Forests and Waters]
30 Environmental Protection, the Department of Agriculture, or the
19950S1320B1604 - 12 -
1 [county] local government unit, as the case may be, and after
2 public hearing, shall find that such acquisition and use are
3 necessary or proper for the service, accommodation, convenience
4 or safety of the public.
5 Section 10. This act shall take effect in 60 days.
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