Depending on where you live, open space or the preservation of open space can be a very controversial topic. There is always a balance between property owners’ rights to develop their property pursuant to municipal ordinances while, at the same time, ensuring that there is quality open space preserved for the use and enjoyment of current and future generations.
The amount and type of open space that one might expect is based upon the type of municipality. In a city-type environment, open space simply might consist of municipal parks and recreation areas that have been constructed and retained over the years while the remaining land is fully developed. In suburbia, there is likely a mixture of municipal parks and other larger areas of open space that have been created by and through residential developments. These areas could be publicly owned or privately controlled. In rural settings, meadows, farmlands, and forest areas are common, while, otherwise, the landscape is occasionally interspersed with housing developments.
Regardless, the preservation of open space has become more of a concern to many municipalities. There are several different ways the law now allows for open space to be either created, maintained or preserved.
First, when new residential/commercial developments are proposed, most ordinances now have minimum open space requirements so that all of the land is not developed. Ordinances generally require larger areas of open or green space. Also required are perimeter common open space areas that provide buffers from existing neighbors. Depending upon the type of the project, such open space land could be privately owned by individual lot owners, owned and maintained by a Homeowner’s Association, or dedicated to a municipality who then retains ownership and maintenance responsibilities. Second, many boroughs and townships now have adopted Open Space Plans which are planning tools to predetermine areas that would be conducive for open space preservation. These plans can target environmentally sensitive areas such as floodplains, woodlands, and wetlands. Such areas can serve as land for municipal trail systems. The benefit of these plans allows municipalities to obtain grant funds for acquisition of open space through a variety of county, state and federal funding sources. Usually, with these grants, only a low percentage of local tax money is required.
Finally, under Pennsylvania Law, townships and boroughs, through voter referendum, are permitted to place on the ballot a question if voters wish to consent to the imposition of additional earned income tax for the purpose of acquiring and maintaining open space. If voters approve such a referendum, the municipality may adopt an amendment to its Earned Income Tax Ordinance to allow a designated stream of earned income tax funds to be used for open space acquisition and maintenance. This, of course, allows a municipality to create a designated open space fund to actually negotiate with landowners and purchase larger tracts of open space to then be preserved in perpetuity.
As mentioned, there are various types of open space, which can include open space for passive and active use. Rural municipalities tend to want to keep open space passive such as farmlands, meadows, and forests, so maintenance obligations are limited. It is not unusual that a pedestrian trail could be constructed around a passive recreation area, which could include a pond, gazebo, or benches that would allow residents to fully appreciate the natural setting within the community. However, many times in residential developments, municipalities encourage or require developers to construct larger areas of active recreation, which include soccer fields, baseball fields, football fields or simply develop large, flatter areas of grass that can be used by local youth sports teams or simply a place for gathering for community events.
Overall, there is an intrinsic value to municipalities that have parks and open space systems that are attractive to both current and prospective residents. Appropriately maintained park systems and recreational areas also tend to increase property values. All of the methods described in this article to obtain or preserve open space are viable. Most municipalities use a combination of them to ensure that land within their borders is not overly developed, allowing the residents to use and enjoy their open space.
Charles D. Garner, Jr., Esquire, is an attorney at the law firm of Wolf, Baldwin & Associates, P.C., which maintains offices in Pottstown, Reading and West Chester. He has significant experience in municipal representation, zoning and land use matters. He and the firm have other diverse experience including small business representation, municipal employment negotiation and litigation, contracts and civil litigation, and estate planning and administration. In addition, Mr. Garner is currently the Chairman of the New Hanover Township Board of Supervisors and has served as an elected supervisor since 2016. Mr. Garner can be reached at 610.323.7436 or by email to firstname.lastname@example.org.