Act 442 of 1967 Wins Big in Westtown Township: Registered Voters Overwhelmingly Pass an Open Space Tax Referendum

from New Matter 1st Quarter 2023

CCBA BAR TAB New personal and professional updates

By John R. Embick, Esquire

John R. Embick, PLLC Chair of the CCBA Environmental Law Section

On November 8, 2022, the voters of Westtown Township passed the following referendum question:

“Do you favor the imposition of an increase in the earned income tax at a rate not to exceed eight one hundredths (8/100th) of one percent (0.08%) and an increase in the real property tax at a rate not to exceed 0.42 mills ($0.42 per $1,000 assessed valuation) by the Township of Westtown to be used to purchase interest in real property for purposes of securing open space benefits and for transactional fees incidental to acquisitions of open space property; retire indebtedness incurred in acquiring open space; and the expenditure of funds for any purpose relating to the acquisition, planning for acquisition, preservation, improvement and maintenance of open space or for an open space benefits?”

The specific language of the referendum is specified by law (except for the amount of the proposed tax levy). The referendum measure asked township voters to approve or reject a tax increase for the acquisition or preservation of open space. The referendum question passed overwhelmingly. The final percentages, as reported by

Chester County Voter Services for the five Westtown Township precincts, were 68% in favor, and 32% opposed (4,202 votes in favor and 1,979 votes opposed) (see, https://pennsylvania.totalvote.com/Chester/ResultsSW. aspx?type=MUN&cid=03&map=CTY (election results updated as of 11/29/2022)).

In Westtown Precinct 5 (where Crebilly Farm, the object of an open space preservation effort is located), the vote was approximately 86% in favor, to 14% opposed. These results suggest that the referendum was strongly supported by Democrats, Republicans and Independents (exit polling rarely occurs in local elections, so we only have the numbers reported by Chester Voter Services to use as support for these assumptions).

In modern political parlance, this is usually characterized as a “landslide” victory by political observers (e.g., New York Times, Washington Post, etc.), and which has been defined as a 15% or more margin of victory (although “landslide” does not appear to have a formal metric (like those developed by ASTM International) associated with the term).

The backstory is as follows. First, I note a disclaimer: I live in Westtown Township, and participated in a political campaign which supported the passage of the open space tax referendum. This story stretches back to 2016, when a large residential housing developer obtained an interest in a 300-acre tract located at the northwest corner of U.S. Route 202 and Pa. State Route 926, known as the Crebilly Farm (“Crebilly”). Among other things,

Crebilly is part of what is known as the Brandywine Battlefield Swath, the latter being a huge area associated with military actions and engagements during the Battle of Brandywine on September 11, 1777. The evidence of such actions directly and significantly affecting Crebilly seems somewhat unclear. Nevertheless, some citizens view Crebilly as “sacred ground.”

The developer proposed to construct over 300 homes on the Crebilly site, as set forth in several land development plans. Many township residents opposed the proposed development on numerous grounds (such as adverse impacts on traffic, environment values, historical values, scenic values, etc.). The developer sought approval under the conditional use process specified by the PA Municipalities Planning Code and the local zoning code. Many nights of hearings were held before the township Planning Commission, and then the township Board of Supervisors. The first conditional use application ended in a denial, for a number of reasons, including the developer’s refusal to construct a connector road. The developer appealed and the township prevailed, in part, before Chester County Common Pleas court (“CCCCP”) (see, Toll PA XVIII, L.P. v. Westtown Township Board of Supervisors, et al., No. 2018-02620-ZB, October 1, 20189 (Judge Tunnell presiding)), and then before Commonwealth Court, the latter which reversed and affirmed, in part, and remanded to the CCCCP (see, Appeal of Toll PA XVIII, L.P., No. 1366 C.D. 2018, December 12, 2019 (unreported decision)).

Prior to the Commonwealth Court decision and remand, the developer proposed a revised development plan in a second conditional use application, and attempted to address some of the determinations made in Judge Tunnell’s earlier lower court decision. Again, many nights of hearings occurred before the Planning Commission and then the Board of Supervisors. In both conditional use applications, the Planning Commission recommended denial, but proposed many conditions for the Board of Supervisors to consider, should an approval be granted. Towards the end of the conditional use proceedings before the Board of Supervisors, the parcel owner abruptly and unexpectedly decided in 2021 not to extend the developer’s option to purchase the property. On September 8, 2021, the Board of Supervisors then promptly denied the conditional use application because the developer no longer possessed an ownership interest in the property, and therefore had no right to propose a land development plan.

After the denial of the conditional use application, a prominent land conservation organization approached the parcel owners about a sale of Crebilly to Westtown Township. The parcel owners were open to the opportunity and an agreement of sale (“AOS”) with the township was signed in April of 2022. The township engaged Natural Lands to assist in the application process for grant funds to support the acquisition of Crebilly, and to assist in the process of informing the public about the Crebilly acquisition process, and how Crebilly might be utilized if acquired by the township.

The AOS set forth the terms of sale of approximately 200 acres outright to Westtown Township, and the negotiation of conservation easements on the remaining 100 acres (approximately) of the parcel. The purchase price was set at $20,500,00.00, and the township’s share was $7,500,000.00. The remaining fraction of the purchase price is to be paid through federal, state and county grants, as well as private contributions. At the time of this writing, $6,000,000.00 in grants from Pa. DCNR has been secured. An interesting condition in the AOS was the requirement that an open space tax referendum be placed before the township voters in the general election on November 8, 2022, and that the referendum be passed by the voters.

The open space tax referendum is one of the only state or local taxing provisions which is directly voted on by township residents (another reason to register to vote and turn out to vote!). The referendum is authorized by Act 442 of 1967, as amended, and known as the Preserving Land for Open Air Spaces Act, codified at 32 P.S. §§ 5001, et seq. (“Open Space Act”). The Open Space Act authorizes the Commonwealth of Pennsylvania and local government units thereof to preserve, acquire or hold land for open space uses. The Open Space Act further provides several local taxing options to support these activities.

After the AOS was signed, a group of interested township residents decided to form a political action committee, known as Vote Yes to Save Crebilly Farm (see the group’s website at https://www.voteyescrebilly.com/) to support passage of the referendum question. This group waged a campaign to convince township voters to approve the referendum. Over two hundred people directly and actively participated in the campaign as volunteers, contributors or campaigners, and funds were raised to support the endeavor.

Despite signing the AOS, the township, as a corporate body, decided to take a neutral role in the referendum campaign, although no provision in either the Open

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Space Act or the Second Class Township Code seems to require this. The three individual township supervisors, however, took different positions. One supervisor, Richard Pomerantz, actively and publicly supported the Vote Yes to Save Crebilly campaign. Of the other two supervisors, one took a neutral role and was mostly silent during the campaign. The remaining supervisor, however, despite authorizing the execution of an AOS, actively campaigned against passage of the referendum, raising some interesting contractual, ethical, and free speech issues. Natural Lands had never before encountered this type of political division by their employers in connection with the support of an open space tax referendum and open space acquisition. Perhaps this is just another indication of the state of political polarization in the United States.

We also learned during the campaign that property used for residential homes requires more revenue (for infrastructure maintenance, schools, etc.) than is raised by the taxes generated by the residential properties themselves. Therefore, if the Crebilly property were developed for residential housing, taxes inevitably would have to go up (see, the 2022 Cost of Community Services Report (“CoCS”) (prepared by the Brandywine Conservancy specifically for Westtown Township, and available through Natural Lands), or see, the Chester County 2019 Return on Environment study (available at the Chester County Government web site, at https://www. chesco.org/DocumentCenter/View/49747/ExecutiveSummary?bidId=)). These findings correspond to other recent CoCSs performed by the Brandywine Conservancy and others. The Brandywine Conservancy has reached the same conclusion in CoCS studies for more than 21 townships across the Commonwealth. The American Farmland Trust and others have reached identical conclusions in 80 other studies in 18 other states.

The opponents of the referendum argued that the acquisition of Crebilly was not needed, was too expensive, was not the best “deal,” was located too inconveniently for many township residents, could no longer be used for row-crop agriculture, would raise taxes, and would be used primarily by non-township residents (Thornbury Township (Chester County), Birmingham Township, East Bradford Township, and West Goshen Township are all nearby), etc. None of these arguments seemed to gain much traction with the voters.

As a result of the successful passage of the referendum, the Westtown Board of Supervisors enacted an ordinance in late 2022 which levied the EIT and real estate tax at approximately 50% of the rate authorized by the voters in the referendum question. The Chairman of the Board of Supervisors explained that the Board did not feel that the full amount of the authorized tax rate was needed in 2023, given that all of the conditions of the AOS have not been met. The open space tax levy is intended, in part, to support the debt service on municipal bonds which will be offered for sale by Westtown Township.

The end of this story is yet to be learned. The township must fulfill all of the conditions set forth in the AOS, and raise the necessary funds for the acquisition of Crebilly. The passage of the referendum does indicate that support for open space preservation (and specifically Crebilly) is widespread in Westtown Township.