UPPER POTTSGROVE — A judge ruled Friday that the township’s plan to build a municipal complex on the Smola Farm would violate the state’s Open Space Act.
“Thank God,” said resident Matt Murray who, with resident Nathaniel Guest, brought the lawsuit last February to stop the construction project from being built on what has now been deemed to be protected open space. “Our prayers were answered, and justice prevailed.”
“I’m grateful and this reaffirms my faith in the judicial process and the idea that citizens can have a voice,” Guest said.
“And I stand in awe of what it took to get to this victory, that we had someone like Matt Murray, who was able to devote himself to this full-time and was willing to pry into the township’s action through seemingly endless Right-to-Know requests, many of which he had to appeal; to have an attorney like Kate Harper, who did so much of this work pro-bono, who helped craft this law, and wanted to make sure that a precedent was not set that a township could enact an open space tax and turn it into just another piggy bank to allow them to do whatever they want; and that the promises made to Tommy Smola about this land would not be ignored,” Guest said.
A conceptual drawing of the proposed $5.5 million new township complex in an open space farm field at 370 Evans Road is dated Dec. 21, 2020.(Courtesy of Upper Pottsgrove Township)
“This decision is important in its impact. Local governments all across the state were watching this case,” said Harper, who as a former state representative was instrumental in updating the Open Space Act and getting it passed.
“Nobody likes to raise taxes, and in writing this law, I thought we had made it perfectly clear, if the voters agree to it, the commissioners of any township, including Upper Pottsgrove, should not be able to say ‘we don’t have to follow it.’ That’s not right,” said Harper.
Precedent set
The immediate result of the 10-page ruling in the lawsuit prohibits the township from soliciting and accepting bids for the complex.
The township solicited bids as the result of a 3-2 commissioners vote in August. Prior to the Aug. 19 vote, several speakers, including Commissioner Dave Waldt, who voted no, told the commissioners it would be wiser to wait for the lawsuit over the project to be settled, otherwise the township might bear the expense of tearing the new building down if it loses the case.
Whether or not the lawsuit is “settled,” or if the commissioners will appeal the ruling, is currently unknown.
Of the five commissioners, only Commissioner Cathy Paretti, who also has consistently voted against the township moving forward with this project, was the only one to respond to The Mercury’s emailed request for comment Friday.
“This decision is a victory not only for the residents of Upper Pottsgrove but for the preservation of open space across Pennsylvania,” Paretti wrote. “It also highlights the importance of transparent government, through which many costly issues can be avoided. Moving forward, it will take the collective effort of the full board of commissioners, working openly and in collaboration with township employees, committees, and vendors, to find solutions for the increasingly complex challenges we face as a community.”
The next meeting of the board of commissioners is Monday, Oct. 21 and the matter of the lawsuit and the new municipal complex are not listed on the agenda.
Judge orders project halt
In his ruling, Court of Common Pleas Judge Jeffrey Saltz imposed an injunction on the township to prevent the project from moving forward
Saltz rejected the township’s argument that open space funds were not used to buy the 36-acre Smola Farm, located off Evans and West Moyer roads, because the bond used to raise the money was refinanced with general funds. Therefore, according to the township’s reasoning, the Open Space law did not apply.
“It is immaterial that open space tax revenues were not devoted directly to the payment of the purchase price of the Smola Farm. but rather were used to secure payment of the debt incurred for the acquisition,” Saltz wrote. He said the state law specifically allows for that to take place.
“It is likewise immaterial that the ‘Open Space Fund’ from which the purchase price was paid included both the proceeds of the 2008 notes and general tax revenues that were transferred into that fund. It was the township that made the decision to comingle such funds in a single account, and having done so, it cannot complain that the Plaintiffs could not show which funds in that account were devoted to the purchase of Smola Farm,” Saltz wrote.
The commissioners were justified in believing they were acting within the law, the judge wrote.
“The evidence does not suggest that the commissioners acted in bad faith or with disdain for the open space benefits provided by Smola Farm,” according to Saltz’s decision. “To the contrary, they acted on the advice of the township solicitor that construction of the municipal complex would be legally permissible and they planned for the enhancement of the open space on the remainder of the property.
“Nevertheless, the evidence also shows that the construction and operation of the municipal complex would substantially detract from and materially impair the open space benefits of the Smola Farm in a manner inconsistent with the intent under which the property was acquired,” Saltz wrote.
Voters’ choice
Saltz also stood up for the wishes of the voters who, in 2006, voted to enact an earned income tax to help raise money to buy and protect open space.
“If a municipality could acquire land by using this open space revenue, but then decide to develop the land for another purpose, it would betray the decision of the public to be subject to an additional tax for a single limited purpose,” he wrote.
Not coincidentally, Saltz’s reasoning was similar to points raised by members of the public who have repeatedly warned the commissioners to tap the brakes on its drive to get the building constructed until the lawsuit was resolved.
Even before the suit was filed, residents have attended meetings objecting to the project since it was first revealed to the public in August of 2022, and “Save Smola Farm” yard signs dot the landscape throughout town.
The project and process surrounding it has become increasingly more expensive.
When the board first voted 3-2 to move ahead with the plan, the projected cost for the project was estimated at $5.5 million. But by last year, estimates climbed as high as $8.8 million by the time the full complex was completed.
Costs piling up
During testimony, Commissioners Chairman Trace Slinkerd revealed that the township has already spent about $800,000 on engineering and plans for the complex. Additionally, as of July, the township had spent just under $135,000 in legal fees on the case.
As for the plaintiffs, although Murray and Guest may have won their case, they did not win a request for the township to pay their legal fees, a total of at least $27,000 according to Murray, some of which has been paid through fundraising.
