NORRISTOWN — “This is a case of a broken promise.”
That’s how attorney Kate Harper opened her case last week seeking to stop Upper Pottsgrove Township from building a municipal complex on Smola Farm, a 36-plus acre property purchased in 2008 and listed in the township’s open space plan as “permanently protected open space.”
Harper, a former Republican state representative for the 61st legislative district widely recognized for her championing of preserving Pennsylvania’s open spaces, is representing two residents – Matthew Murray and Nathaniel Guest – who filed a lawsuit in 2023 to stop the township’s plans from being completed.
The promise was made to the late Thomas Smola, who, after resisting developer’s offers for his farm land for years, only agreed to sell it after township officials pledged to preserve it as open space.
Those breaking the promise, according to Harper, are the three current township commissioners who have consistently voted to move forward with plans to build a municipal complex, with a police station, highway garage and township offices, on a portion of that land.
The trial phase of the lawsuit ended Friday and the decision now rests with Commonwealth Court Judge Jeffrey Saltz and it is a decision that is likely to have consequences reaching far beyond the borders of Upper Pottsgrove Township.
The case is being closely watched by land preservation advocates and township officials throughout the Commonwealth because of the precedent it could set regarding the breadth of the legal limits it could set on how much development a township can undertake on land purchased for open space.
The case may also have a chilling effect on the confidence those considering selling their land for preservation have in the good faith of a township doing the purchasing.
Saltz listened to testimony and lawyers arguments over two days and, on Friday said he will make a ruling “soon.” He told lawyers for both sides he would not require any post-testimony briefs.
As the trial got underway Wednesday, all 26 seats in the Montgomery County Courthouse’s windowless Courtroom 12 were filled, primarily by those opposed to the township’s plans, easily identifiable by their green “Save Smola Farm” badges.
- Taking the witness stand were:
- Former commissioner Elwood Taylor,
- Former township manager Jack Layne,
- Residents Nathaniel Guest and Matthew Murray – the two who brought the lawsuit against the township, arguing the plan to build on Smola Farm violates the state’s space law,
- David Smola, nephew of the late Thomas Smola,
- Current Township Commissioners President Trace Slinkerd,
- Scott France, director of the Montgomery County Planning Commission,
- Aloysius Gryga, Director of Planning and Landscape Architecture CMC Engineering, who undertook two studies of possible sites for the municipal complex.
Ultimately, the case may come down to timing and a deed.
Attorney Andrew Bellwoar, who represented the township along with his colleague John Mahoney, spent a lot of time during his cross examinations, focusing on the source of the money that was in the township’s “open space fund” when Smola’s farm, bordered by Evans Road, West Moyer Road and Farmington Avenue, was purchased by the township in December of 2008.
Taylor and Layne both confirmed that after 60 percent of the voters in Upper Pottsgrove approved raising the earned income tax to purchase open space in 2006, that the township went on a bit of a “buying spree.” With just one year of tax receipts under their belt, and several other properties purchased prior to Smola’s farm, the township had taken out a bond to have enough money to continue buying up properties, suddenly more available with the real estate collapse that occurred in the wake of the 2007 recession.
The bond was set up so that income from the increased earned income tax would guarantee the bond payments.
Many of the prior open space purchases had been made using designated funding provided by Montgomery County and, as such, it came with strings attached, most often in the form of deed restrictions that severely limited any kind of future development on land purchased using county funds.
France testified that no county money was used to buy the Smola Farm, even though the minor subdivision plan for the Smola Farm contained a notation about restrictions related to the county’s open space program. However, the deed did not.
The absence of deed restrictions for the Smola Farm “was not a purposeful exclusion,” Taylor testified. “There was never an intent to create a loophole. Obviously, we intended it to be preserved.”
Nevertheless, Bellwoar argued, the “loophole” on the deed does exist and when combined with his argument that the money used to buy Smola Farm came from a bond that the township re-financed and then paid off early with the proceeds of the 2022 sale of the sewer system, no “open space money” was actually used to buy the property.
“There is no evidence open space money was used,” Mahoney argued to the judge. “You can’t retroactively apply the Open Space Act.”
Noting that the same commissioners who bought the Smola Farm as open space also allowed a cell phone tower to be erected there one year later, Mahoney said “the public never had any access to this land. We’re talking about a different kind of public use on the property. This is going to be a park supported by infrastructure. If you go to Valley forge Park, it has restrooms, a parking lot, a visitor center.”
Harper told the judge Mahoney’s reasoning had him “twisting himself up to argue that the Open Space Act was never designed to preserve open space. It’s crazy. They want to build a giant municipal complex there. It’s not an appropriate use. There are no open space benefits, zero, nada, none.”
Taylor also testified, under Harper’s questioning, that because the earned income tax was the collateral for the bond payments it was, in essence, open space money. “That’s where the money came from, the open space account,” he testified. “The intent was always that it be open space.”
In 2020, the same year the commissioners had a conceptual drawing of the municipal complex delivered, they also adopted the township’s open space plan, which lists the Smola Farm as permanently protect open space. By building there, Harper said the current commissioners majority are not only breaking the township’s promise to Thomas Smola, but shirking their responsibility as township officials. “And if they won’t do their job, my clients are going to have to do it for them.”
The Smola property has been farmed by that family since 1850, Murray testified. Preserving it “ticks about every box” of what the state’s open space law lists as its benefits. “To say it doesn’t is ridiculous.”
Current township officials, Murray further testified, have not been open with the public about their intent. He pointed to the fact that the board adopted the resolution to build the complex at that location in 2022, but that conceptual drawings for the project are dated 2020. “They said it was only going to require 1.2 acres, but the map they put on the township website shows it will use closer to four acres.”
Guest testified that he grew up across the street from the farm and knew Thomas Smola as a child. “I would visit there with my grandmother and I was always impressed with Mr. Smola and his dedication to the farm. He would often express to my grandmother the importance of preserving the farm. He had many, many offers and I always admired the fact that he did accept those offers to his own personal detriment.”
“I felt compelled to get involved,” Guest said. “Tommy Smola stood up for this and he’s not here to do it anymore. I’m very concerned about the precedent the township seems ready to take. If we go down this path with this law, it undermines taxpayer faith. We have to stand up.”
“He always intended that this would be open space,” David Smola testified about his uncle’s wishes. “All his life he loved this land. He was very proud of the farm and he did not want to see it developed. I feel very guilty that I didn’t check to make sure it was stipulated in the deed.”
Slinkerd testified that the township’s solicitor twice reviewed the law and the deed to the Smola Farm and determined that building the complex there is legal.
“I understand there is sentimental value in this,” he said.
Slinkerd also conceded that “the number of acres needed has fluctuated” as the plan for the complex has developed. As it has developed, it also has risen in estimated cost. When the resolution authorizing the project to move forward was adopted in 2022, it capped the estimated cost at $5.5 million. By 2023, estimates indicated the cost could grow as high as $8.8 million.
On Wednesday, Slinkerd estimated that the township has spent about $800,000 so far on the plans for the municipal complex.
Slinkerd also said that the idea of putting the municipal complex on the Smola property had been presented to the township’s open space committee, “and they were OK with it.” But when Harper asked him if the committee’s minutes would show that discussion occurred at a public meeting, Slinkerd said he had spoken with the committee members individually, so there is no record of the committee members’ consent.
The Smola Farm site for the municipal project was the result of two studies undertaken by an engineering firm and both recommended that location, Slinkerd said. It’s central location and nearness to major road arteries made it the best spot, he said. Harper suggested at least one of those studies had also endorsed the township property at Heather Place, off route 100, where the police and highway department are now located.
Harper also asked Slinkerd if the commissioners had re-considered their plans after public objections to it surfaced. “Yes we listened to them and we revisited it,” he replied. However, he conceded, no plans were changed.
The commissioners must act in the best interest of the township, particularly when it comes to finances, Slinkerd testified. “About 12 people stood up and made comments. We represent the interests of 6,000 people, not just the people who show up.”
But the commissioners also have a duty to be open and transparent with the public, Harper argued. The fact that plans were drawn up two full years before they became public; that there has been no public planning process since the vote in August of 2022, and that many Right to Know requests for more information were redacted to the point that they are unreadable, demonstrates “that they have hidden from the public their intentions all along,” she said. “They have spent $800,000 of public money on plans they don’t trust the public to see.”
At this point Saltz responded to Bellwoar’s objection that Harper’s line of questioning was not relevant to the issues at hand by saying “my task here is not to police the responsiveness of the board to public opinion. It may well be of interest to the public but it is not relevant to my task here today.”
Rather, Saltz’s task is to decide if the township’s intent to build a municipal complex on land purchased for open space protection violates the state’s Open Space Act.
