UPT Board Meeting Notes 3/19/18 Episode 3: Preservation Reservations

Gentle Reader, if you haven’t engaged in the activity of thinking for a while, your humble blogress has a prescription for you:  tune in to the Upper Providence Board of Supervisors meetings every first and third Monday, where Board Chairman John Pearson indulges his ego and reads a Googled vignette into the record, the purpose of which he condescendingly declares is to “make you think.”

So much thinking happening.

I’m not sure where the imperative to “make” the constituency “think” can be found in the Municipal Code, but suffice to say, this is usually the section of the meeting for which Pearson is most prepared.  If you were wondering why Pearson has been using public meetings to get educated on Township process and issues, wonder no more: it takes a lot of time to search the internet for just the right story and there are only so many hours in the intervening two weeks between meetings.  Perish the thought that the Board has to actually spend their own time reading a report prepared by Staff, which is why the new Board compensates Staff to stick around till the end of these interminable meetings to dictate those reports directly to them.

If you are going to watch or attend the UPT BOS meetings, make sure you don’t miss Pearson’s Story Time to “make you think.”  Because you will surely go brain dead watching the rest of the meeting.

This meeting clocks in at a healthy one hour and 45 minutes.  As usual, embedding is verboten so the meeting can be found HERE.

Are the kids behaving?

Everything is fine, Mrs. Parr

In one of the stranger moments in municipal history, resident Arthur Lebofsky inquired into the status of the Fire and EMS subcommittee and asked, “Is everyone is getting along?  Are the conversations civil?”  I’m reminded of my babysitting days when I’d get a check in call from the parents about their children.  Stranger still were the answers, as Board members hastened to reassure Lebofsky that everyone was, in fact, getting along.

Lebofsky, who has been petitioning the Board to pass anti-Trump resolutions since Trump’s election in 2016, saw an opening in an amenable Board, and once again asked the Board to pass a resolution in against Trump’s EPA reforms.  While the previous Board was not in favor of utilizing the Township Manager’s time in drafting meaningless resolutions on national policy/denouncing the Trump administration, Pearson was, of course, eager to say, “I’m in favor of this,” based solely on the color of the Perkiomen Creek.

E  I  E  I  Oh.

The meeting on 3/19 was the second of what will be at least three discussions of the Duhovis Farm preservation this year.  As such, we’re going to go into a deep dive on this issue and give it the attention it deserves.

Duhovis Farm (Google Maps)

County Farm Board Representative Danielle Weiden made another appearance before the Board and she didn’t seem any better prepared this time than she did at the last meeting.  Things started off poorly when Weiden submitted a list of properties in Upper Providence Township that were included in the Agricultural Security District and, after looking at it for only five minutes, Supervisor Phil Barker noted that the list was from 1996 and that many of the properties included on it (including Parkhouse, which was formerly owned by the County) have been sold, developed or purchased by the Township.  After some back and forth, Weiden shrugged off the responsibility for updating the list to the Township.  Barker sits on the Board of the Ag Security Board and said that there was never any list that they were required to update, and that the Board had not met in at least three years.

What exactly is the hierarchy here?  Weiden’s title at the County is Senior Planner/Farmland Preservation Administrator which is presumably a paid position.  What is she Administering?

The Duhovis farm was approved by the County as eligible for the PA Farmland Preservation program and the purchase of an Agricultural Easement.  According to ConservationTools.org, eligibility for Agricultural Easement Purchase is defined as follows:

Properties must meet the state’s basic requirements for the purchase program, listed below:

  • The property must be located in an agriculture security area, which is comprised of at least 500 acres of viable agricultural land in one or more ownerships.
  • The property must be at least 50 acres in size. However, parcels as small as 10 acres may be preserved if they are adjacent to existing preserved farmland or used for the production of crops unique to the area.
  • At least 50% of the property must be either harvested cropland, pasture, or grazing land, and it must contain at least 50% of soils of land capability classes I-IV, as defined by USDA-NRCS.

This lot is 44 acres and I am not sure of the size of the plot that is actually farmed or if the crops are unique, but if approved by the Township, the property will be subject to an annual inspection to make sure that 50% of the property is being used for agriculture.

As a refresher, this is the fourth time that Upper Providence has been asked to consider preserving this farm; most recently, in October of 2017.  Including this go ’round, Phil Barker has considered this four times; John Pearson three and Al Vagnozzi twice.  The property sits in the very corner of the Township.  It offers no continuity to existing open space or trail connectivity to existing trails within Upper Providence or neighboring Townships.  The Duhovises are on record as unwilling to offer public access to their land, should such connectivity become available.  The Board has also expressed concerns about spending money on a piece of ground that the Township does not control.  For these reasons, the Duhovis Farm preservation was previously turned down three separate times.

So how did this get back on the agenda?  At the 3/5 meeting, it appeared that Supervisor Laurie Higgins was the requestor in placing this item before the Board, and during that meeting, she stated that the Duhovis property is in her neighborhood and she does not want to see it developed.

Enough with the trees.  What are we doing for the HORSES?

Interestingly, on January 18, 2017, I attended a public meeting held by Upper Providence Township Parks Department to discuss master planning our parks, open spaces and trails.  Higgins was at that meeting and her questions centered on the lack of horse trails, parking and accessibility, specifically at the Township’s Hess Preserve.  After campaigning on open space “dialog,” connecting all residents through a “unified trail system,” and fiscal transparency, all while being critical of the Township’s purchase of open space in 2017, it seems a bit hypocritical to dump taxpayer money in to a piece of property that offers none of her stated objectives to Township residents, but offers a financial benefit to her neighbors while satisfying her own apparent NIBMY tendencies.

The Board is proposing to use open space funds to pay the 15% match that the County is requiring to preserve this property, about $86,100. The Duhovises stand to receive a windfall in excess of a half a million dollars from State, County and Township funds combined should the Township approve this transaction.

It should be noted that there is nothing in the Agricultural Conservation Preservation statue that requires payment of Township funds.  The AG Preservation program is a program administered by the County; how they choose to fund farm preservation is up to them.  Conservationtools.org:

A county may fund the purchase of agricultural easements in various ways. The county may use county general funds, proceeds from a bond or other form of indebtedness, funding from municipalities and private sources. Additionally, the county board may seek state funding through the Agricultural Conservation Easement Purchase Fund and/or federal reimbursement from the USDA Agricultural Conservation Easement Program. Counties may also use the 6% interest repaid by landowners on rollback taxes of properties removed from the Clean & Green program to fund their easement purchase programs.

The stated benefits offered to the Township are that the land stays open, the property stays on the tax rolls, and that the Township is not burdened by the infrastructure needs if the property is developed.

Duhovis Farm circled in red on Upper Providence Township Zoning Map

The property is currently zoned R1 and it consists of 44 acres.  R1 zoning is essentially one house per acre, so by rights, the land could potentially be developed for, at most, 44 units.  I am not sure how much infrastructure investment would be required by Upper Providence for 44 additional units in the far corner of the township, but this concern is correctly included as part of the consideration on whether Township funds should be dedicated to this venture.  It should be noted that while it’s true that the property is currently on the tax rolls, as Barker correctly points out, it is also enrolled in Act 319, or “Clean and Green,” which means that it is on the tax rolls, but the property is assessed and taxed at a reduced rate.

The main concern voiced at the 3/19 meeting was the permanency of the deed restriction.  What exactly is the money buying? From ConservationTools.org:

People often refer to the county boards “purchasing development rights” instead of “purchasing conservation easements.” The latter term is the far more accurate description. The counties do not actually obtain development rights; rather, they obtain a right to block development. Specifically, the following happens in the purchase of an agricultural conservation easement: The landowner places a restrictive covenant on their land that restricts the land’s use to agricultural production and certain other activities; this is accomplished by recording a “Deed of Agricultural Conservation Easement.” In the deed, the landowner grants the relevant government units the right to enforce the restrictive covenant. For this, the government pays the landowner.

This Township has seen deed restrictions with the Railroad Company abandoned, and has seen open space sold by Montgomery County.  It is, in fact, Montgomery County who ultimately controls this parcel, so the question of the permanency of this deed restriction is a huge concern given the County’s propensity for selling open space to fill budget holes.  Penn State Law is worth quoting at length (emphasis mine):

According to section (c) (1) of the PACE act, the term of an agricultural conservation easement is perpetual. This means that the conservation easement never expires on its own terms. Entering into an agricultural conservation easement program has serious and long range consequences on the present and future owners of a farm. This should be considered along with the benefits that selling an agricultural conservation easement provides. While an agricultural conservation easement under the Pennsylvania PACE program does not expire on its own terms, there are several ways that an agricultural easement could end. The first is that after a twenty five year period during which conservation easements may not be terminated for any reason, agricultural conservation easement may be sold back from either the Commonwealth of the county to the landowner. 3 PS §914.1(c) This requires the approval of the State board for the Commonwealth or the county board for the county. This is spelled out in PACE section (c) (3). The board will allow this sale if the land has no viable agricultural use.

The meaning of this is not spelled out in the statute and no regulation has been made stating what standard of review the board will use. Since Pennsylvania’s PACE program has not yet reached the twenty five year period, there have not been any attempts to remove land from the program. The agricultural conservation easement program in Maryland is very similar to Pennsylvania’s program. MD §2-501 The first agricultural conservation easements that were purchased under the Maryland program have recently reached the twenty five year mark, but so far there are no reported cases on the subject of terminating agricultural conservation easements. It could be useful to watch Maryland to see how they handle this issue when someone wants to buy back the conservation easement from the state. A second way for an agricultural conservation easement to be terminated is through condemnation by a governmental body. 3 PS §914.1(c)5. For a governmental body to exercise their eminent domain powers, they need to purchase the conservation easement from the state or county, depending upon who holds the easement. Condemning land that is subject to an agricultural conservation easement is difficult because if a piece of property has a conservation easement it is likely to also be in an agricultural security area, which protects farmland from eminent domain. 3 PS §913(a)

Stoneleigh.  Great place for a ball field.

It’s worth noting that not only is the definition of “permanent” meant to be 25 years, but that the law is not yet old enough to provide examples of what happens to preserved farmland at the end of the 25 year period.  It’s also worth noting that these deed restrictions have not yet been challenged.  Though an Act 319 “Clean and Green” enrollment protects properties from eminent domain challenges, eminent domain is always a concern and doesn’t always crop up where you expect it.  Across the County, in Lower Merion, it’s eminent domain that is currently threatening Stoneleigh, a property recently preserved by Natural Lands, that has not yet opened to the public:

It is a place with deep roots: towering trees, lauded landscape architecture, and community connections.

Stoneleigh is undergoing a transition from a beloved family home to a public garden rich with native plants so that everyone may be inspired to think in new ways about their own properties. We invite you to join us on this journey.

For nearly 80 years, Stoneleigh was the home of the Haas family, who donated the property to Natural Lands in 2016 so that it would remain preserved forever

So of course a property with towering trees and lauded landscape architecture is the perfect place for Lower Merion School District to put some ball fields:

 “Recently, we became aware of a piece of property — it’s called Stoneleigh — it’s the old Haas estate. It’s about a third of a mile from the [Islamic Foundation],” [Lower Merion School District Superintendent Robert] Copeland said.

A few years ago, the 42-acre site was deeded to the Natural Lands Trust, but Copeland said there are about 7 acres of the estate that is developable.

According to district Solicitor Ken Roos, 6.9 acres has been set aside under a plan filed through the township as potentially developable by the owner.

“The 6.9 acres is not being offered for sale,” Roos said. “The trust has indicated they have no interest whatsoever in selling the property. They’ve made it clear to the school district, or anyone else for that matter, but the property is at this point … part of a plan filed with the township that is theoretically set aside for future development.”

So with the district admitting the property owner is unwilling to sell the site to the district, where does it stand?

“So, the Natural Lands Trust is not interested … in selling the land, but we are interested in looking at the land. We have gained entry to the land, and in early April, we will be doing an inspection of the land,” Copeland said.

Typically, open space is managed by a government entity or a public trust, such as Natural Lands, and ownership is deeded to that entity.  In the case of farm preservation, the ownership never changes hands and responsibility for the property remains in the hands of private owners with the governmental agency ultimately becoming the “enforcer” of the deed restriction.

Penn State Law is worth reiterating here:  “Entering into an agricultural conservation easement program has serious and long range consequences on the present and future owners of a farm.”

By all appearances, an Agricultural Conservation Easement, combined with Act 319 seems to protect the land from selling to a developer.  The questions, however, remain:  CaptureWhat becomes of this land, and the landowners, when farming is no longer viable?  What percentage of the family’s income is derived from farming?  How much, if any, of the payout from the preservation easement will be used to support their living expenses, and how long is it expected to last?  What happens when they cannot continue to farm the required area of land?  They cannot sell the land for the going rate, as its assessment has been reduced, and they must sell to someone who agrees to continue to farm the land per the deed restriction.  What if there are no takers?  Will we end up with another “mulch farm” in the Township? Perhaps readers may feel that many of these questions are too probing, delving into the Duhovises private lives and finances, to which I would respond that they are requesting over a half a million dollars in taxpayer money for inclusion in this program.  These are questions to which we have a right to answers.

As I’ve said before, Farm Preservation is very romantic, but in the long term, is this program, particularly as it applies to small farms in suburban areas, a prudent use of tax payer dollars?  Is a vegetable stand in Upper Providence the same thing as crop farming in Lancaster County?

Can we ultimately hold the owners to the terms of the deed restriction regardless of the hardships it may create for them down the road?

The issue was tabled on 3/19 to gather “more information.”  It will be interesting to see how this progresses, as it is unclear as to whether there is unanimous support for this approval.  Keep in mind that three of these sitting Board members have already voted “no” on participating in this program at least once, and that there have been no changes to the proposal since the last time it was reviewed.  It has also been reviewed and rejected numerous times by the Planning Commission.  It’s clear that in his two years out of office, John Pearson has changed his mind about this particular parcel, and it’s also clear that Supervisors Higgins and Calci are in favor of it.  Given Barker and Vagnozzi were still somewhat skeptical at the end of the discussion, I wonder why Pearson didn’t just call for a vote.  He only has to count to three and it appears he has the votes for approval.  Is he willing to pass something on a partisan basis, or does he need the votes of the Republicans on the Board to give him cover?

I’ll end on subject of permanency with some thoughts on the breaking of trusts with the relocation of a famous local institution, the Barnes Foundation.  NYTimes:

“There are valid arguments to be made for moving the collection to a place where more people can see it,” Ms. Eaton [Linda Eaton, director of collections at Winterthur] added. “And as for the question of whether Barnes’s will should be broken, is a will necessarily the most sacred document in the world?

“Changing the will is a legal issue. But changing the institution is a very different issue. Institutions can’t become fossils if they want to survive.”

The Other Circus

If you haven’t heard, the Circus is coming to town.  The Cirque du Soleil, that is.  Residents familiar with the Oaks interchange on 422 probably remember the hundreds of trailers lined up on the land area in front of The Dump.  The previous Board guided a land development plan to get the owner (Audubon Land Development or ALD) to move the trailers off of that frontage.  In recent years, equipment auctions have been held there.

Cirque2Cirque will be bringing the “Big Top” to Oaks on that spot, and it will necessitate some site work, specifically blacktopping and stormwater management.  The tent is a temporary structure, so therefore not subject to land development code, which led to some discussion about the waiver vs deferral of land development rights by the Township.  Since the structure is temporary, this action is kind of both.  The township will get full development input should a permanent structure be developed.  In an answer to a resident’s question, paving the lot does not constitute land development.

Another noteworthy moment in this discussion came when Pearson actually asked a question relevant to the issue:  Because traffic is always a concern down here, what will be going on at the Expo Center while Cirque is in town?

ALD’s Brad Macy explained that there will be no “big” shows at the Expo during Cirque’s run.  Furthermore, the Expo shows generally run during the day and wrap up around 6pm while Cirque will primarily be a night-time enterprise with show times starting at 7pm.  Vagnozzi noted that at a meeting this past fall with the Cirque folks, they promised to use UPT police and Fire Police for traffic control.

Various and Sundry Actions

  • The Board approved participating in an application for a joint multi-modal grant with Royersford and Limerick on Lewis Road for sidewalks.  If memory serves, this application was originally submitted in an effort to make the road safer after 40-year-old jogger Mirenda Thompson was struck and killed by a driver on N. Lewis Road on March 4, 2013.  Limerick Township is the lead on this application.  UPT spend is $6,957.30.
  • grantsThe Board approved the third application for a $927,000 PennDOT multi-modal grant in connection with aligning Jacob and Walnut Streets in Mont Clare at Route 29.  The Township has already acquired the property necessary and demolished the building. The money that has already been spent on this project goes towards the grant application.  Traffic engineer Ken O’Brien noted that this grant usually requires a 30% match from the Township, but he is recommending a 50% match on the application to make the application more attractive.
  • The Board approved an application for a $250,000 Greenway, Trails and Recreation grant to connect the Schuylkill River Trail East with Schuylkill Canal Parks, which will also give the Township access to the sewer line that runs along that area.
  • Township Finance Director read his report into the record.
  • Township Public Works Director was excused from the meeting due to the impending Nor’Easter.  This announcement prompted some idle weather chit chat which was abruptly curtailed by Vagnozzi.
  • Township Planner Geoffrey Grace notes the ZHB meeting on Thursday, 3/22 will primarily address resident concerns over the Cellco Cell Tower.  Also noted is a proposed development at Yerkes/Hopwood and 29 for approximately 130 apartment/condo units.  This development is still in discussion and not formally submitted, but would necessarily include improvements to that intersection.
  • Tieperman also noted that the Township is accepting bids on demolishing the farmhouse at the Taylor farm.  Barker questioned when the decision was made to demolish the farmhouse.
  • During Supervisor Comments, Vagnozzi noted that in the past several years, the Board has held a Goals, Objectives and Issues retreat to basically set the agenda for the coming year.  This had the added advantages of not only keeping everyone “on the same page” but mostly prevented “surprise” items from appearing on the agenda.  Supervisor Helene Calci stepped up and said that she was the one who derailed this Goals and Objectives meeting.  She noted that there was so much to learn as a new Supervisor, she just wanted to get past the Fire and EMS decision before moving forward with anything else, and Higgins and Pearson concurred.  It’s an understandable line of reasoning, however, the Goals and Objectives meeting typically served as clarification for the Board and Staff in moving forward in a unified direction.  With two new members and competing ideological priorities, participating in this meeting would only serve to make the job easier and less contentious.

Fire and EMS Meeting

Township Manager Tim Tieperman announced that the long awaited special Fire and EMS meeting will be held on April 4.  The location of the meeting is “to be determined” as Tieperman noted that the current room at the Rec Center in which the Board is meeting, is probably going to be too small because, “John keeps inviting people.”

I think it’s great that attendance is anticipated to be high, but I truly hope that this meeting is not going to become another exercise in political theater with resident sock puppets coming up to give voice to a Board member’s agenda.

1MailersideAFire and EMS is a thorny and critical issue and not only are there no easy answers, there are no permanent answers as the manner in which Fire and EMS services are delivered is in a constant state of flux.  The newly elected Democrats politicized the issue of Fire and EMS as their primary plank during the last election; indeed the two Township-wide mailers they sent out blatantly misrepresented the Township’s fire funding formula, so it will be interesting to see where they stand on this now, especially since, by their own admissions at this meeting, they have been focusing on Fire and EMS almost to the exclusion of everything else.  It should be noted that the much-derided fire funding formula remains unchanged almost 4 months into their tenure.

Vagnozzi stated that he does not want to see the EMS Companies’ “dirty laundry” dragged out in the open, because “we did that before.”  I’m not quite sure what he means by “dirty laundry,” since the Board was being asked to enter into a completely new venture necessitating a contract with a particular service provider.  The “dirty laundry” aired was necessitated by the State’s sunshine laws, and I take great exception to the use of the term as it applies to this issue and how it was handled by the prior Board.


As good a decsion making tool as any.

We have a big week coming up next week in Upper Providence, with the Board meeting on Monday, 4/2 and the Fire and EMS meeting on Wednesday 4/4.  Presumably, some of the lingering issues from the last few months will be resolved next week.  The big question: will this new Board have the fortitude to approve initiatives of real consequence?

For the answers to these, and other burning questions, stay tuned to this space.  Sign up for email updates (top right sidebar) and have our posts delivered right to your inbox so you don’t miss a thing.

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