Land Preservation Strategies

This list of land preservation strategies is adapted from Worcester's 2006 Open Space Plan. It includes both acquisition and non-acquisition methods.

A. Acquisition strategies. These strategies involve the municipality or another entity (county, state, or nonprofit organization) acquiring some or all of an interest in the land.

Fee Simple Acquisition

This is the most direct way to acquire open space. The municipality receives free and clear title to the property, or fee simple ownership. Because it is usually a straightforward transaction, municipalities often prefer this approach, particularly for establishing a community park. However, it is the most costly method, unless the seller offers a bargain sale (a price lower than the appraised value of the land).

Installment Purchase

The municipality can agree to make annual payments of the purchase price over a set number of years. For a municipality with limited funds, installment buying spreads the cost over a period of time. There may also be tax advantages to the seller.

Right of First Refusal and Purchase Option

The right of first refusal is a contract between the buyer and seller which specifies that the land may be acquired by the buyer at a future date. This gives the municipality the opportunity to match an offered purchase price within a specified time period should a landowner receive a legitimate offer to sell. A purchase option is simply a right that the municipality holds to purchase the land by a specified date at a specified price. A right of first refusal and a purchase option can be either donated to the municipality or sold.

Life or Term Estates

This technique involves the acquisition of land with certain restrictions attached to the deed. A municipality may be better able to negotiate the purchase of property if certain interests in the land are reserved for the benefit of the landowner. For example, a municipality can purchase land with all rights of ownership conveyed except the right to occupy a house or a portion of the full property for a specified term (usually 25 years) or until the death of the landowner. This method can enable a municipality to acquire land at a lower price (because the purchase price is reduced by the value of the seller's option to remain on the land) for a future need.

Purchase and Lease-Back

The municipality can buy land and lease it back to the owner in accordance with agreed-upon policies for the use and protection of the land. The advantage is that this permits the purchase of property before prices rise or before the property is lost to development. It also permits flexibility because once the land is purchased, it can be used for another public purpose, sold, or exchanged for another parcel.

Purchase and Resale

This method is similar to purchase and lease-back, except that the land is purchased with the intent of reselling it under conditions or restrictive covenants. If the land is acquired at a low cost, the resulting profits help repay initial purchase costs and can be used to acquire additional land. Another advantage is that after resale, the municipality is relieved of ownership and maintenance responsibilities and the land is taxable.

Easements

Easements are a successful way to maximize the use of public funds, yet receive open space benefits. An easement is a limited right over land owned by another person. The costs of easements vary with the type acquired. Easements can be affirmative or negative. Affirmative easements grant limited rights to the municipality to use the land for public purposes, such as hiking, fishing, or riding. Such easements can be used selectively to obtain public use of private lands for trails and access to water-based recreational facilities. In contrast, negative easements restrict the owner's use of the property. For example, a scenic easement requires the owner to preserve the "openness" or natural beauty of a site. This type of easement can be effective in maintaining municipality's visually attractive roads or historic resources. A conservation easement requires the owner to maintain the land to protect resources of interest, such as natural or historic resources. An agricultural easement requires the owner to farm a certain portion of the land. Conservation and agricultural easements commonly restrict the right to develop the property.

A conservation easement on the 90-acre Markel farm on Green Hill Road has preserved it as permanent open space.

Purchase of Development Rights

If the municipality is interested in protecting land or designated features of a property without gaining the right of public access, then this method of acquisition of partial interests rather than full fee title in land is available. A municipality can preserve significant natural, scenic, historic, or cultural resources by purchasing a landowner's right to develop the property or otherwise alter the character of the features that are deemed worthy of protection. The resulting restriction on the landowner's right to develop the land must be memorialized in some manner. A restriction in the deed is relatively vulnerable to being overturned in the future, if the landowner can make the argument that the restriction no longer makes sense. A more permanent development restriction is an easement that describes the features to be preserved – environmental or historic resources, scenic features, or productive farmland. An easement usually includes an agreement that specifies how the landowner will preserve and maintain the resource being protected, and how the easement holder will monitor the easement.

Eminent Domain

Eminent domain is the condemnation of land for a public use by due process of law. It must involve the determination of a fair market value for the property and a clear definition of the public purposes for which it is being condemned. Before exercising the right of eminent domain, a municipality should study the necessity of obtaining the particular site and the feasibility of acquiring it by other acquisition methods. Only if all other methods fail and the property is essential to an open space system should eminent domain be considered.

Land Trusts and Conservancies

Land trusts and conservancies are private, non-profit organizations whose expertise and/or funding can be used to provide open space and to preserve natural, historic, or cultural resources. Administration and management of the land are the responsibility of the organization. Private non-profits have an advantage in that they can often move faster to acquire property than a government agency. A public-private partnership can be formed whereby the private agency acquires land and then resells it to a government agency at a later date. Several conservation groups in the area will work with private landowners to conserve their land. These situations may or may not include provisions for public access. Because of this, a municipality should work closely with these organizations and landowners where public access is a goal.

Several townships in the area have formed township land trusts to facilitate the acquisition and/or protection of land as open space. These land trusts develop a system for evaluating and ranking available lands in the township and prioritize their preservation activity accordingly. They are commonly funded by municipal contributions and/or a dedicated open space bond fund or earned income tax. Township land trusts can bring organization and flexibility to a township's open space program by providing a methodology for identifying and preserving land, holding and monitoring protective easements, and negotiating trail connections between preserved lands. Visit the West Vincent Township website at www.westvincenttwp.org to learn about the activities of their land trust.

Land Exchanges

This method involves the trading of land between two or more owners to obtain mutual advantages. An arrangement can be made between landowners to exchange land that serves their interests.

Leasing

This is a relatively inexpensive way to acquire open space, especially if the land is unlikely to be developed (for example, reservoirs and utility land). The term of the lease usually ranges form 20 to 50 years; at a minimum, a period should be established that is long enough to finance anticipated capital improvements. Issues such as maintenance, conditions of use, and liability are negotiated between the parties.

Long-Term Lease with Option to Buy

This involves the negotiation of a lease price with a property owner and includes conditions for use and possible purchase of the property. The primary advantage is that it permits flexibility. If the property is not needed in the future for open space, it returns to the owner.

Voluntary Agreements

Voluntary agreements can be established between government agencies and owners of agricultural lands, industrial holdings, and utility lands for various purposes. They are strictly voluntary, with permission to use the land for public enjoyment in clearly specified ways. For example, a utility company might permit trail use of a power line right-of-way.

Donations and Bargain Sales

These methods of acquisition involve obtaining land at less than its full market value. Receiving donations of the full value of land is the least expensive way for a municipality to obtain land and can, in some instances, be a wise approach for a landowner to take to directly benefit from tax incentives and the shelter effects of charitable deductions. If a full donation of land is not possible, or if the landowner has an immediate need for cash, then a partial donation and bargain sale might be a viable alternative. By selling land at a price that is less than its full value, a landowner can still receive tax benefits based on the difference between the fair market value of the land and its actual sale price. The primary benefit to these techniques is that a municipality acquires land at a lower cost and the seller obtains tax advantages. Additional tax advantages were enacted by Congress in August 2006 and will be effective for donations and bargain sales completed by December 2007. Consult a tax advisor for more details.

For years, Peter Schlotterer planted native tree seedlings on his 17-acre tract on Schultz Road to restore the land to its original state. He donated a conservation easement on the land to the Montgomery County Lands Trust in 2002, permanently preserving this young woodland.

B. Non-acquisition strategies. These are methods by which a municipality can protect land with out owning any interest in the land. Such strategies are usually not specific to a particular parcel but affect a range of parcels with certain characteristics. Zoning and land development ordinances are typical methods by which a municipality can have an effect on land without owning it.

Conservation Subdivision

A municipality's zoning, subdivision and land development ordinances can require that the homes that are allowed to be built on a parcel must be concentrated on certain portions of the parcel, and the remaining areas of the parcel must be left as open space, permanently restricted from further development. The best of these ordinances provides for a detailed planning process by which the municipality works with the developer to protect the important natural, scenic, and historic resources on a site and locate the homes on the remaining acres. Worcester recently passed such an ordinance, known as the "Growing Greener" ordinance, and the first subdivision plan has been submitted.

Transfer of Development Rights

Land that is valuable for open space or is unsuitable for building because it is environmentally sensitive can be preserved from development by permitting the owner to build the allowed number of homes on another parcel in the township. The right to build the allowed number of homes is transferred from the "sending" parcel to the "receiving" parcel. Worcester recently incorporated such a provision into its Growing Greener ordinances, paving the way for the potential preservation of additional land as open space at no cost to the township.

Performance Zoning

This zoning provision requires the size of a residential lot to be related to the amount of buildable land on the lot. A larger minimum lot size can be required when certain environmental constraints, such as steep slopes, floodplains, and wetlands, are present. The required minimum lot size is increased in proportion to the amount of constrained land on the site. This method is intended to provide sufficient land on a lot for the construction of the permitted buildings and associated paving without compromising sensitive environmental features. However, zoning ordinances do not restrict the disturbance of these environmental features. Related subdivision ordinances should restrict development on the constrained land (slopes, wetlands, etc.). Other than these development restrictions, the environmental features are not protected from degradation. Worcester currently has performance zoning and restrictive land development ordinances for steep slopes, wetlands, floodplains, and stream corridors, but not for woodlands. North Coventry Twp has a woodlands protection ordinance, and Natural Lands Trust has other examples of such ordinances.

Parkland/Fee-in-Lieu Ordinance

The Municipalities Planning Code allows townships that have prepared a Parks & Recreation Plan to require developers to provide a certain amount of parkland per new home, or to pay a fee to the township in lieu of this land. The land must be developed as a park for the use of the development's residents, and the fee must be used to purchase parkland for the use of these residents.

The Planning Commission considered such an ordinance several years ago and recommended that the BOS consider it. Worcester does not have a Parks & Recreation Plan, but one can be prepared by our county planner if the Planning Commission and the BOS request it.

Agricultural Zoning

Agricultural zoning sets the minimum lot size on agriculturally valuable land at a larger size, to favor the continuation of farming operations on the land. Usually the minimum size is 10 acres, consistent with the requirements of Act 319 (PA Clean & Green). This type of zoning may also include the possibility of limited residential development on a sliding scale, with larger parcels allowed to develop more homes than smaller ones. For example, a ratio of 1 building lot per 10 acres could be used. This zoning must be supported by the presence of prime or statewide-significant agricultural soils and active farming operations or it could be open to legal challenge.

A variation of this strategy allows municipalities to require developers to protect one acre of agriculturally valuable land for every acre that they develop, or to pay a fee into a township fund dedicated to the permanent preservation of agricultural land.

Agricultural zoning can also permit commercial farm-related uses that are not allowed in strictly residential zones, such as farm stands and indoor riding rings.

Rural Development Guidelines

Subdivision and land development ordinances can be designed to protect natural resources, maintain rural character, and preserve open space by requiring clustering of homes, prohibiting removal of trees and hedgerows, and requiring homes to be set back from scenic roads. Worcester's ordinances already include some of these requirements, and the planning components of the Growing Greener ordinances will provide an opportunity for the township to focus on these issues on a parcel by parcel basis.

II. Funding Sources. This list of possible funding sources was prepared by our Montgomery County planning consultant as part of the 2006 Open Space Plan.

Montgomery County Open Space Program – Municipal Grants

Worcester has been allocated approximately $871,000 in the first round of funding under the County Open Space Program. This grant requires 20% matching funds from the municipality. Any land purchased with this grant money must be permanently preserved as open space (including farmland) or for active recreation (parks). Worcester's Open Space Plan must be approved by the county's Open Space Board before grant money can be disbursed. The township must spend this money by April 2008. At that time, any unspent municipal allocations will be consolidated, and municipalities can apply to this fund on a competitive basis.

State/County Farmland Preservation Program

The Farmland Preservation Program purchases agricultural easements from productive farms in Montgomery County which are 35 acres or larger, or which are next to permanently preserved land. When the rights are sold, the owner keeps the land but no longer has the right to build non-agricultural buildings. The land must remain in agriculture in perpetuity. The farmer may sell the land, but the new owner must continue to grow productive crops or pasture on it. As of January 2006, horse boarding operations are considered to be agricultural activity.

Over 100 acres of Willow Creek Orchards has been permanently preserved for farming under the state/county Farmland Preservation Program.

PA Department of Conservation and Natural Resources

DCNR manages a variety of grant and technical assistance programs. DCNR annually awards about $30 million in planning, acquisition, and development grants for parks, recreation, rivers conservation, trails, greenways, and protection of open space and critical natural areas. Most DCNR grants require a 50/50 match. DCNR holds pre-application workshops to assist applicants in the preparation of their application forms.

A priority goals of these programs is to develop and sustain partnerships with communities, non-profits, and other organizations for recreation and conservation projects. With this in mind, the Community Conservation Partnerships Program (C2P2) was established. It is a combination of several funding sources and grant programs, including the Commonwealth's Keystone Recreation, Park and Conservation Fund (KEY 93, described below), the Environmental Stewardship and Watershed Protection Act (Growing Greener, also described below), Act 68 Snowmobile and ATV Trails Fund, the Land and Water Conservation Fund (LWCF), and the Recreational Trails component of the Transportation Equity Act for the Twenty-First Century (TEA-21).

• PA Department of Environmental Protection – DEP's Growing Greener program has funded efforts to clean up Pennsylvania's rivers and streams, reclaimed abandoned mines and toxic waste sites, invested in new alternative energy sources, preserved farmland and open space, and developed watershed restoration programs. Thus far, Growing Greener has generated nearly $1.50 in matching funds for the environment for every $1.00 in state money. As the Growing Greener program evolves, it will focus on brownfield redevelopment, farmland and open space preservation, water quality improvements, enhanced state and community parks, and an upgraded fish and wildlife infrastructure. Growing Greener II will accomplish these goals while making critical investments in community revitalization and the promotion of the use of clean energy.
• Keystone Recreation, Park, and Conservation Fund – The Keystone Recreation, Park and Conservation Fund Act was signed into law in 1993. It directs a portion of the state's Real Estate Transfer Tax to the Keystone Fund, establishing a dedicated and permanent funding sources for recreation, parks, conservation, and other programming. Grants from this program require a minimum 50% match from the recipient municipality or nonprofit organization. As of 2002, $144 million had been granted to more than 2,100 projects. The demand on the Keystone Fund already outstrips resources by a 4 to 1 margin.

Pennsylvania Historical & Museum Commission

Many communities value their historic resources and work to preserve them for future generations. These resources can then be integrated into the open space network and cultural amenities of that community to enhance local image and aesthetics. The PHMC offers several programs that aid municipalities in these efforts. PHMC's Certified Local Government Grant Program provides funding for cultural resource surveys, national register nominations, technical and planning assistance, educational and interpretive programs, staffing and training, and pooling CLG grants and third party administration. Visit the PHMC website at http://www.phmc.state.pa.us/ to learn more about their programs.

• Keystone Historic Preservation Grant Program – This program provides funding for preservation, restoration, and rehabilitation
• Pennsylvania History and Museum Grant Program – Funding under this program is designated to support a wide variety of museum, history, archives and historic preservation projects, as well as nonprofit organizations and local governments. There are 10 types of grants.

Delaware Valley Regional Planning Commission Transportation and Community Development Initiative

The TCDI program is intended to assist in reversing the trends of disinvestment and decline in many of the region's core cities and first generation suburbs by

• Supporting local planning projects that will lead to more residential, employment or retail opportunities
• Improving the overall character and quality of life within these communities to retain and attract business and residents, which will help to reduce the pressure for further sprawl and expansion into the growing suburbs
• Enhancing and utilizing the existing transportation infrastructure capacity in these areas to reduce the demands on the region's transportation networs
• Reducing congestion and improving the transportation system's efficiency

Congestion Mitigation and Air Quality Improvement Program

This program seeks transportation-related projects that can help the region reduce emissions from highway sources and meet National Clean Air Act standards. The program covers the DVRPC region of Bucks, Chester, Delaware, Montgomery, and Philadelphia counties in Pennsylvania; and, Burlington, Camden, Gloucester and Mercer counties in New Jersey.

Transportation Enhancement Program

Transportation Enhancements is a set-aside of federal highway and transit funds, mandated by Congress in the Transportation Equity Act for the 21st Century (TEA-21) for the funding of "nontraditional" projects designed to enhance the transportation experience, to mitigate the impacts of transportation facilities on communities and the environment, and to enhance community character through transportation-related improvements.

National Park Service Rivers, Trails, & Conservation Assistance Program

The program offers technical assistance only to nonprofit organizations, community groups, and local or state government agencies. Rivers and Trails technical staff offers the following types of assistance for recreation and conservation projects:

• Building partnerships to achieve community-set goals
• Assessing resources
• Developing concept plans
• Engaging public participation
• Identifying potential sources of funding
• Creating public outreach
• Organizational development
• Providing conservation and recreation information

PECO Green Region Grants

PECO Energy is currently involved in several environmental partnerships, including "TreeVitalize" with DCNR, clean water preservation with The Nature Conservancy, and environmental education initiatives with the Schuylkill Center for Environmental Education and Green Valleys Association. Green Region grants are available to municipalities in amounts up to $10,000. The grants can be used with other funding sources to cover a wide variety of planning and direct expenses associated with development and implementing open space programs, including consulting fees, surveys, environmental assessments, habitat improvement, and capital improvements for passive recreation, including trails.

General Revenue Funds and Bond Issue

Worcester has the option of using general revenue funds for open space and recreation purposes. It also has the option of issuing a bond or instituting a dedicated earned income tax to pay for the capital costs of open space and parkland acquisition and development. The decision to pursue these options rests with the township supervisors. In some cases, voter authorization must be obtained for a bond issue or dedicated earned income tax.

Donations

Worcester can encourage donations from individuals, businesses, and groups to help pay for parkland acquisition, development, and tree planting. The donations may be cash, materials, or labor. Worcester has an Open Space Fund which has received a generous donation from an anonymous resident every year for the past several years.
Comprehensive and Open Space Plans.