legislation

Land Trusts, Trail Groups, Local Governments, and Other Landowners Get New Liability Protection

Posted on October 25, 2018 Leave a Comment

On October 24, 2018, Governor Wolf signed Act 98 into law. Act 98 amends the Pennsylvania Recreation Use of Land and Water Act (RULWA) to better protect from liability those who open their properties to the public for recreation without charge. Improvements to the law include:

Explicitly listing paths, paved and unpaved trails, fishing and boating structures, hunting blinds, parking, and other infrastructure associated with outdoor recreation as areas to which the liability protections of RULWA apply.
Clarifying the law to include within the meaning of recreation “exercise, sport, education, recreation, relaxation or pleasure.”
Enabling landowners to collect certain contributions—voluntary ones, in-kind (e.g., receiving a portion of deer meat hunted on the property), and those used exclusively to cover property taxes or liability insurance)—without losing liability protections.

The Pennsylvania Land Trust Association worked for a dozen years to improve liability protections for land trusts, trail groups, local governments, and private landowners that open their land to the public. The Association testified before committees of the General Assembly multiple times, wrote countless letters, and made numerous legislative visits after first thoroughly analyzing the state’s liability protections and identifying deficiencies in 2006.

The Association will be updating its guide Pennsylvania’s Recreational Use of Land and Water Act: Statutory Protection for Property Owners Who Open Their Land to the Public and other guidance in the Managing Liability section of ConservationTools.org to reflect this new development in the law.

Governor Signs HB 2468

Posted on June 25, 2018 Leave a Comment

Governor Wolf quietly signed HB 2468 (and several other bills) into law on Sunday, June 24. The bill is now Act 45 of 2018.

A correction to the previous PALTA communication: Act 45 should apply retroactively to McCormick Farm, so, hopefully, the Cumberland Valley School District will cease its pursuit of the farm. The district will now have to convince the Orphans’ Court that there is “no reasonable and prudent alternative” if it wishes to take the conserved land.

This should be the last Conservation Advocate alert of the season.

Once again, thank you all for your efforts.

HB 2468 Is on Governor’s Desk

Posted on June 25, 2018 Leave a Comment

Friday evening, after the Senate passed HB 2468 (37-12), the House voted to concur (177-15) with the Senate’s changes to the bill. The governor is expected to sign the bill.

This is a thrilling victory for conservation!

This landmark, bipartisan legislation provides a crucial safeguard for conservation easements from the unnecessary exercise of eminent domain by school districts and other local units of government. And with it, the General Assembly once again affirms the value of conservation easements in Pennsylvania.

If you reached out to your legislators on this legislation, thank you! Your outreach brought the bill to the finish line. Passage was far from guaranteed—not even remotely likely a few weeks ago—but each of your calls and emails brought us closer to victory. Thank you for acting when needed.

Representatives Warren Kampf (Montgomery/Chester), Kate Harper (Montgomery), and Marcy Toepel (Montgomery) were the chief sponsors. Without their leadership, there would have been no legislation introduced, never mind a bill at the Governor’s desk. Thank you, representatives! Kudos also to Senator Bob Mensch (Berks/Bucks/Montgomery), who played a key role in the bill’s passage.

Every legislator who voted for the bill deserves thanks. Please extend your thanks to them. Find their votes:

(Find your legislator here.)

As near as PALTA can tell, HB 2468 provides the most far-reaching safeguard for conservation easements against unreasonable exercise of eminent domain in the nation. This achievement is a credit to Pennsylvania’s robust community of land trusts, the wonderful places they have conserved for the public benefit, and the relationships of land trust people with state and local community leaders.

For those concerned with the present eminent domain battles, note that HB 2468 does not apply retroactively. Thus, Natural Lands will continue to challenge the Cumberland Valley School District’s taking of McCormick Farm in court. (Also, the Pennsylvania Land Trust Association plans to file an amicus brief in this case.) Regarding, Stoneleigh, the Lower Merion School District may continue to explore eminent domain but, in addition to having to face a very upset public, it will be bound by the new law, which at its heart states:

The orphans’ court shall review the proposed condemnation and approve the proposed condemnation only if the court determines there is no reasonable and prudent alternative to the utilization of the land subject to a conservation easement for the project.

Thank you once again for all of your efforts!

PALTA Letter to Senators (6/21)

Posted on June 21, 2018 Leave a Comment

The Pennsylvania Land Trust Association sent the following letter to all Pennsylvania state senators and their chiefs of staff on June 21, 2018.

Subject: Support HB 2468. Stop irresponsible eminent domain.

Dear Senator:

On behalf of the 75 member organizations of the Pennsylvania Land Trust Association and the 120,000 Pennsylvanians they count as members, I write to request that you:

(1) ask Senate leaders to have the vote on HB 2468 today or tomorrow,

(2) vote for HB 2468, and

(3) oppose all amendments.

HB 2468 defends conservation easements from irresponsible eminent domain, ensuring that the would-be condemner will look for reasonable and prudent alternatives to the condemnation before proceeding.

Respect Civic-Minded and Generous Donors

Families who donate conservation easements for the public good should not see their civic-mindedness and incredible generosity punished by school districts (or other government bodies) thoughtlessly condemning these easements and the land they conserve. HB 2468 provides respect for these landowners and the benefits they thoughtfully establish for the public.

Uphold a Conservative Tool for Conservation

Conservation easements are a non-regulatory, property-rights-based tool. They are used to conserve special places for the public’s benefit without resort to regulation and without requiring public ownership. They keep land in private ownership. Poorly considered eminent domain threatens this conservative approach to protecting the places people care about. HB 2468 protects this crucial tool for conservation.

A Fair and Balanced Approach

The legislation is fair and balanced. The bill only requires a search for reasonable and prudent alternatives to taking a conservation easement. In requiring orphan’s court review, HB 2468 establishes a review process for conservation easement condemnations analogous to that provided by the Agricultural Lands Condemnation Approval Board (ALCAB) for lands in agricultural security areas.

Respecting Our Constitution

Article 1, Section 27 of the Pennsylvania Constitution states that:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.

A conservation easement accomplishes such preservation pursuant to public policy, and the legislation ensures that the government does not act heedless of the people’s right to it. Since environmental rights don’t exist in a vacuum, the legislation doesn’t block eminent domain; it only requires that before exercising eminent domain on a conservation easement, the condemner look for reasonable and prudent alternatives.

It’s only reasonable that governments should look for reasonable and prudent alternatives before jumping to take conserved lands, upending the expectations of community members that their beloved special places are there for the long run.

Thank you for your consideration.

Sincerely,

Andrew M. Loza
Executive Director
Pennsylvania Land Trust Association

Committee Votes Out HB 2468! Push Now for Floor Vote

Posted on June 20, 2018 Leave a Comment

We Need an Amendment-Free Vote This Week to Stop Irresponsible Eminent Domain

The Senate Local Government Committee reported out House Bill 2468 Wednesday afternoon in an 11-1 vote! The next step for the bill, which requires court approval of conservation easement condemnations, is a vote of the full Senate. Senators must pass the bill this week and cleanly—no amendments—to ensure that the bill’s protections are put in place before the legislature leaves for the summer.

Please contact your state senator(s) today and request that they:

(1) ask Senate leadership to put HB 2468 up for a vote THIS WEEK,

(2) vote for HB 2468, and

(3) OPPOSE ALL AMENDMENTS.

Find your legislator here.

Respect Civic-Minded and Generous Donors

Families who donate conservation easements for the public good should not see their civic-mindedness and generosity punished by school districts (or other government bodies) thoughtlessly condemning these easements and the land they conserve.

A Fair and Balanced Approach

The legislative cure is fair and balanced. The bill only requires a search for reasonable and prudent alternatives to taking a conservation easement. In requiring orphan’s court review, HB 2468 establishes a level of review for conservation easement condemnations analogous to that already provided by the Agricultural Lands Condemnation Approval Board (ALCAB) for lands in agricultural security areas.

Upholding a Conservative Tool for Conservation

Play by the Rules

Nothing is totally safe from government use of eminent domain—not state-owned game lands, not factories, not national parks, not land trust-held easements, not anything. However, government (including school districts) must be responsible in its use of eminent domain; it must follow the rules. Those rules include following the constitution. The legislation upholds the first sentence of Article 1,* Section 27 of the Pennsylvania Constitution:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.

A conservation easement accomplishes such preservation, and the legislation ensures that the government does not act heedless of the people’s right to this preservation. Since environmental rights don’t exist in a vacuum, the legislation only requires that before exercising eminent domain on a conservation easement, the condemner look for reasonable and prudent alternatives.

The Threat

Twice in 2018 (and never before in anyone’s memory) school districts have threatened conservation easements:

In the case of the McCormick Farm, it’s clear that the district didn’t expend any effort considering the conservation impact or looking for alternatives. In fact, it appears that the district thought it could somehow get away on the cheap by taking conserved land. (Read PALTA’s letter to the school district.) The district’s taking of the farm and conservation easement is now in litigation.
In the case of Stoneleigh, the school district is still in the exploratory stage, not having made a decision to condemn or not, but the public is in an uproar over a potential taking of this beautiful open space generously and expressly donated by the Haas family for the enjoyment of all generations. (See http://www.savestoneleigh.org/)

School districts (and other units of government) should look for prudent alternatives before jumping to take conserved lands, upending the expectations of community members that their beloved special places are there for the long run, and incurring unnecessary legal expenses.

Other Notes

Check out the recent article in the Philadelphia Inquirer.

The heart of HB 2468 reads:

The orphans’ court shall review the proposed condemnation and approve the proposed condemnation only if the court determines there is no reasonable and prudent alternative to the utilization of the land subject to a conservation easement for the project.

Conservation easements are especially important in fast-growing parts of the state where they serve to protect—in full cooperation with private landowners—open lands that people love even as an area becomes densely developed.

HB 2468 was reported out of the House Local Government Committee on June 12 with a unanimous (27-0), bipartisan vote.

Representatives Kampf, Harper, and Toepel introduced HB 2468 at the beginning of June. If you’re in their districts, please give them a big thanks!

* Article 1 is akin to the U.S. Bill of Rights. Pennsylvanians’ environmental rights are placed at the same level as rights to free speech, bear arms, and religion.