PRIOR PRINTER'S NO. 2475 PRINTER'S NO. 4692
No. 1910 Session of 2001
INTRODUCED BY BARD, CORNELL, HERMAN, PIPPY, SOLOBAY, DAILEY,
M. BAKER, BELFANTI, BUNT, CAPPELLI, CAWLEY, L. I. COHEN,
M. COHEN, CREIGHTON, CURRY, GEORGE, GODSHALL, McGILL, SAYLOR,
STABACK, E. Z. TAYLOR, TIGUE, VITALI, M. WRIGHT, YOUNGBLOOD,
FREEMAN, CORRIGAN, GRUCELA, J. BAKER, HARPER AND STEELMAN,
SEPTEMBER 18, 2001
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
NOVEMBER 25, 2002
AN ACT
1 Amending the act of January 19, 1968 (1967 P.L.992, No.442),
2 entitled, as amended "An act authorizing the Commonwealth of
3 Pennsylvania and the local government units thereof to
4 preserve, acquire or hold land for open space uses," adding
5 provisions relating to mitigation of flood hazards; AND <--
6 REPEALING PLANNING REQUIREMENTS.
7 The General Assembly of the Commonwealth of Pennsylvania
8 hereby enacts as follows:
9 Section 1. Sections 1, 2, 3, 4, 5 and 7 of the act of
10 January 19, 1968 (1967 P.L.992, No.442), entitled, as amended
11 "An act authorizing the Commonwealth of Pennsylvania and the
12 local government units thereof to preserve, acquire or hold land
13 for open space uses, amended December 18, 1996 (P.L.994,
14 No.153), are amended to read:
15 Section 1. Statement of Legislative Intent.--It is the
16 purpose of this act to clarify and broaden the existing methods
17 by which the Commonwealth and its local government units may
1 preserve land [in or], acquire land OR CLEAN UP LAND for open <--
2 space uses. The Legislature finds that it is important to
3 preserve open space and to meet needs for recreation, amenity,
4 and conservation of natural resources, including farm land,
5 forests, and a pure and adequate water supply. The General
6 Assembly further finds that the acquisition of property that is
7 either located in areas having special flood hazards or other
8 areas of flood risk or that is substantially damaged by flood,
9 not only would reduce future risk of flood damages but also
10 would advance the purposes of this act. The acquisition and
11 resale of property interests authorized by this act are hereby
12 declared to be for the public benefit, for the advancement of
13 the public health, safety, morals and general welfare of the
14 citizens of the Commonwealth, and for the promotion of sound
15 land development by preserving suitable open space and
16 concentrating more dense development in nearby areas. THE <--
17 GENERAL ASSEMBLY FURTHER FINDS THAT IT IS IN THE PUBLIC INTEREST
18 TO ENCOURAGE THE CLEANUP OF LAND POLLUTED BY MINING AND TO
19 CONVERT THIS LAND INTO OPEN SPACE FOR PUBLIC USE.
20 Section 2. Definitions.--For the purpose of this act the
21 following definitions shall apply:
22 (1) "Open space benefits." The benefits to the citizens of
23 the Commonwealth and its local government units which result
24 from the preservation or restriction of the use of selected
25 predominantly undeveloped open spaces or areas, including but
26 not limited to: (i) the protection and conservation of water
27 resources and watersheds, by appropriate means, including but
28 not limited to preserving the natural cover, preventing floods
29 and soil erosion, protecting water quality and replenishing
30 surface and ground water supplies; (ii) the protection and
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1 conservation of forests and land being used to produce timber
2 crops; (iii) the protection and conservation of farmland; (iv)
3 the protection of existing or planned park, recreation or
4 conservation sites; (v) the protection and conservation of
5 natural or scenic resources, including but not limited to soils,
6 beaches, streams, flood plains, steep slopes or marshes; (vi)
7 the protection of scenic areas for public visual enjoyment from
8 public rights of way; (vii) the preservation of sites of
9 historic, geologic or botanic interest; (viii) the promotion of
10 sound, cohesive, and efficient land development by preserving
11 open spaces between communities[.]; and (ix) the promotion of
12 open space benefits through the mitigation of flood hazards.
13 (2) "Interest in real property." Any right in real property,
14 improvements thereto or water, whatsoever, including but not
15 limited to a fee simple, easement, remainder, future interest,
16 transferable development right (TDR), lease, license,
17 restriction or covenant of any sort, option or contractual
18 interest or right concerning the use of or power to transfer
19 property.
20 (3) "Open space property interests." Any interest in real
21 property acquired hereunder for the purpose of achieving open
22 space benefits.
23 (4) "Open space uses." Land uses which are not inconsistent
24 with the achievement of open space benefits.
25 (5) "Local government unit."
26 (i) A county;
27 (ii) a county authority having among the purposes for which
28 it was created the achievement of one or more of the open space
29 benefits set forth in this section;
30 (iii) a municipal corporation as defined in 1 Pa.C.S. § 1991
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1 (relating to definitions) or any similar general purpose unit of
2 local government; or
3 (iv) any unit created by joint action of two or more local
4 government units which is now or shall hereafter be authorized
5 to be created by the General Assembly, including cooperation by
6 two or more local government units in accordance with [the act
7 of July 12, 1972 (P.L.762, No.180), referred to as the
8 Intergovernmental Cooperation Law.] 53 Pa.C.S. Ch. 23 Subch. A
9 (relating to intergovernmental cooperation).
10 (6) "Planning commission." A local board, commission or
11 agency which has been designated by the governing body of a
12 local government unit to establish and foster a comprehensive
13 plan for land management and development with the local
14 government unit.
15 (7) "Transferable development right" or "TDR." The
16 attaching of development rights to specified lands which are
17 desired by a local government unit to be kept undeveloped, but
18 permitting those rights to be transferred from those lands so
19 that the development potential which they represent may occur on
20 other lands where more intensive development is deemed to be
21 appropriate.
22 (8) "Flood Mitigation Assistance Program." The Federal
23 program authorized by sections 1366 and 1367 of the National
24 Flood Insurance Act of 1968 (Public Law 90-448, 42 U.S.C. §§
25 4104c and 4104d) and regulations appertaining thereto.
26 (9) "Hazard Mitigation Grant Program." The Federal program
27 pursuant to which hazard mitigation grants are made under the
28 provisions of section 404 of The Robert T. Stafford Disaster
29 Relief and Emergency Assistance Act (Public Law 93-288, 42
30 U.S.C. § 5170c) and regulations appertaining thereto.
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1 (10) "Mitigation of flood hazards." The acquisition of
2 property located in areas having special flood hazards or other
3 areas of flood risk and of property substantially damaged by
4 flood in accordance with or supplementary to the Hazard
5 Mitigation Grant Program or the Flood Mitigation Assistance
6 Program. Property acquired to mitigate flood hazards shall be
7 used in a manner compatible with open space, recreational or
8 wetland management practices, including parks for outdoor
9 recreational activities, nature reserves, cultivation, grazing,
10 camping, buffer zones and other uses consistent with the use
11 restrictions of the Hazard Mitigation Grant Program and the
12 Flood Mitigation Assistance Program.
13 (11) "CLEANUP." TO CLEAN UP, MITIGATE, CORRECT, ABATE, <--
14 MINIMIZE, ELIMINATE, CONTROL OR PREVENT A RELEASE OF A REGULATED
15 SUBSTANCE INTO THE ENVIRONMENT IN ORDER TO PROTECT THE PRESENT
16 OR FUTURE PUBLIC HEALTH, SAFETY, WELFARE OR THE ENVIRONMENT. THE
17 TERM INCLUDES PRELIMINARY ACTIONS TO STUDY OR ASSESS SUCH A
18 RELEASE.
19 Section 3. Planning Requirements.--(a) Except for the <--
20 mitigation of flood hazards, the conditions set forth in
21 subsection (b) shall apply.
22 (b) The Department of Conservation and Natural Resources and
23 the Department of Agriculture shall not acquire any interest in
24 real property under the provisions of this act, unless said real
25 property has been designated for open space uses in a resource,
26 recreation, or land use plan submitted to and approved by the
27 State Planning Board. A local government unit shall not acquire
28 any interest in real property under the provisions of this act
29 unless said real property has been designated for open space
30 uses in a resource, recreation or land use plan recommended by
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1 the planning commission of the municipality in which the real
2 property is located and adopted by the governing body of that
3 municipality. Where the municipality in which the real property
4 to be acquired is located has no planning commission, a local
5 government unit shall not acquire any interest in real property
6 under the provisions of this act unless said real property has
7 been designated for open space uses in a resource, recreation or
8 land use plan approved by the planning commission of the county
9 in which the real property is located and adopted by the
10 governing body of the municipality wherein the real property is
11 located.
12 [SECTION 3. PLANNING REQUIREMENTS.--THE DEPARTMENT OF <--
13 CONSERVATION AND NATURAL RESOURCES AND THE DEPARTMENT OF
14 AGRICULTURE SHALL NOT ACQUIRE ANY INTEREST IN REAL PROPERTY
15 UNDER THE PROVISIONS OF THIS ACT, UNLESS SAID REAL PROPERTY HAS
16 BEEN DESIGNATED FOR OPEN SPACE USES IN A RESOURCE, RECREATION,
17 OR LAND USE PLAN SUBMITTED TO AND APPROVED BY THE STATE PLANNING
18 BOARD. A LOCAL GOVERNMENT UNIT SHALL NOT ACQUIRE ANY INTEREST IN
19 REAL PROPERTY UNDER THE PROVISIONS OF THIS ACT UNLESS SAID REAL
20 PROPERTY HAS BEEN DESIGNATED FOR OPEN SPACE USES IN A RESOURCE,
21 RECREATION OR LAND USE PLAN RECOMMENDED BY THE PLANNING
22 COMMISSION OF THE MUNICIPALITY IN WHICH THE REAL PROPERTY IS
23 LOCATED AND ADOPTED BY THE GOVERNING BODY OF THAT MUNICIPALITY.
24 WHERE THE MUNICIPALITY IN WHICH THE REAL PROPERTY TO BE ACQUIRED
25 IS LOCATED HAS NO PLANNING COMMISSION, A LOCAL GOVERNMENT UNIT
26 SHALL NOT ACQUIRE ANY INTEREST IN REAL PROPERTY UNDER THE
27 PROVISIONS OF THIS ACT UNLESS SAID REAL PROPERTY HAS BEEN
28 DESIGNATED FOR OPEN SPACE USES IN A RESOURCE, RECREATION OR LAND
29 USE PLAN APPROVED BY THE PLANNING COMMISSION OF THE COUNTY IN
30 WHICH THE REAL PROPERTY IS LOCATED AND ADOPTED BY THE GOVERNING
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1 BODY OF THE MUNICIPALITY WHEREIN THE REAL PROPERTY IS LOCATED.]
2 Section 4. Applicability.--[The] Except for the mitigation
3 of flood hazards, the Commonwealth of Pennsylvania, through the
4 Department of Conservation and Natural Resources or the
5 Department of Agriculture, may exercise the powers granted by
6 this act only with the consent of the county commissioners of
7 the county in which the real property is situated. All local
8 government units may exercise the powers granted by this act.
9 Section 5. Acquisition of Interests in Real Property.--(a)
10 The Commonwealth of Pennsylvania, through the Department of
11 Conservation and Natural Resources, may acquire any interest in
12 real property by purchase, contract, condemnation, gift, devise
13 or otherwise, for any of the following purposes:
14 (1) To protect and conserve water resources and watersheds;
15 (2) To protect and conserve forests and land being used to
16 produce timber crops;
17 (3) To protect an existing or planned park, forest, wildlife
18 preserve, nature reserve or other recreation or conservation
19 site by controlling the use of contiguous or nearby lands in
20 order to protect the scenic, aesthetic or watershed values of
21 the site;
22 (4) To protect and conserve natural or scenic resources,
23 including but not limited to soils, beaches, streams, flood
24 plains or marshes;
25 (5) To protect scenic areas for public visual enjoyment from
26 public rights of way;
27 (6) To preserve sites of historic, geologic or botanic
28 interest;
29 (7) To promote sound, cohesive, and efficient land
30 development by preserving open spaces between communities;
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1 (8) To limit the use of the real property so as to achieve
2 open space benefits by reselling real property acquired in fee
3 simple, subject to restrictive covenants or easements limiting
4 the use thereof for the purposes specified in clauses (1)
5 through (7) hereof[.]; and
6 (9) To promote the mitigation of flood hazards.
7 (b) The Commonwealth of Pennsylvania, through the Department
8 of Agriculture, may acquire any interest in real property by
9 purchase, contract, gift, or devise for any of the following
10 purposes:
11 (1) To protect and conserve farmland;
12 (2) To protect and conserve water resources and watersheds;
13 (3) To limit the use of real property so as to achieve open
14 space benefits by reselling real property acquired in fee
15 simple, subject to restrictive covenants or easements limiting
16 the use thereof for the purposes specified in clauses (1) and
17 (2) hereof.
18 (c) (1) A local government unit may acquire any interest in
19 real property situate within its boundaries by purchase,
20 contract, condemnation, gift, devise or otherwise, for any of
21 the purposes set forth in clauses (1) through [(8)] (9) of
22 subsection (a) of this section, and may acquire any interest in
23 real property situate within its boundaries by purchase,
24 contract, gift or devise, for any of the purposes set forth in
25 clause (1) of subsection (b) of this section, including limiting
26 the use of real property to achieve open space benefits by
27 reselling real property acquired in fee simple, subject to
28 restrictive covenants or easements limiting the use thereof for
29 the purposes set forth in clauses (1) through (7) of subsection
30 (a) and clause (1) of subsection (b) of this section.
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1 (2) During the time that real property or any interest in
2 real property acquired by a local government unit for open space
3 purposes in accordance with this act is held by the local
4 government unit, the real property shall be ineligible for the
5 purchase of agricultural conservation easements authorized in
6 the act of June 30, 1981 (P.L.128, No.43), known as the
7 "Agricultural Area Security Law."
8 (d) The power to acquire interest in real property to
9 promote the mitigation of flood hazards shall include the power
10 to provide for the demolition of structures on, or the
11 relocation of structures from, the property acquired.
12 Section 7. Property Acquired in Fee Simple.--If the owner of
13 the interests in real property to be acquired pursuant to the
14 provisions of this act prefers to have the Commonwealth or the
15 local government unit acquire the property in fee simple, the
16 Commonwealth or the local government unit shall be required to
17 acquire the property in fee simple. [All] Except for the
18 mitigation of flood hazards, all real property acquired in fee
19 simple by the Commonwealth, through either the Department of
20 Conservation and Natural Resources or the Department of
21 Agriculture, or by a local government unit, under the provisions
22 of this act, shall be offered for resale publicly in the manner
23 provided by law within two years of the date of acquisition,
24 subject to restrictive covenants or easements limiting the land
25 to such open space uses as may be specified by the designating
26 department or agency in accordance with section 6 hereof, and
27 consistent with the resource, recreation, or land use plan
28 established in accordance with section 4 hereof. In the case of
29 the Commonwealth, such resales may be made without specific
30 authority of the General Assembly and shall be through the
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1 Department of General Services at public sale in the manner
2 provided by law.
3 Section 2. Section 7.1(a) of the act, added December 18,
4 1996 (P.L.994, No.153), is amended and the section is amended by
5 adding a subsection to read:
6 Section 7.1. Local Taxing Options.--(a) [A] Except as
7 provided in subsection (a.1), a local government unit, excluding
8 counties and county authorities, may by ordinance impose, in
9 addition to the statutory rate limits on real estate taxes set
10 forth in the municipal code of that local government unit, a tax
11 on real property not exceeding the millage authorized by
12 referendum under this subsection. In the alternative, a local
13 government unit, excluding counties and county authorities, may
14 by ordinance impose, in addition to the earned income tax rate
15 limit set forth in the act of December 31, 1965 (P.L.1257,
16 No.511), known as "The Local Tax Enabling Act," a tax on the
17 earned income of the residents of that local government unit not
18 exceeding the rate authorized by referendum under this
19 subsection. Revenue from the levy shall be used to retire the
20 indebtedness incurred in purchasing interests in real property
21 or in making additional acquisitions of real property for the
22 purpose of securing an open space benefit or benefits under the
23 provisions of this act or the act of June 30, 1981 (P.L.128,
24 No.43), known as the "Agricultural Area Security Law." The local
25 taxing option authorized by this subsection shall not be
26 exercised unless the governing body of the local government unit
27 shall by ordinance first provide for a referendum on the
28 question of the imposition at a specific rate of the additional
29 tax to be imposed and a majority of those voting on the
30 referendum question vote in favor of the imposition of the tax.
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1 The ordinance of the governing board of the local government
2 unit providing for a referendum on the question shall be filed
3 with the county board of elections. The referendum shall be
4 governed by the provisions of the act of June 3, 1937 (P.L.1333,
5 No.320), known as the "Pennsylvania Election Code." The election
6 official shall cause the question to be submitted to the
7 electors of the local government unit at the next primary,
8 general or municipal election occurring not less than the
9 thirteenth Tuesday following the filing of the ordinance with
10 the county board of elections. At such election, the question
11 shall be submitted to the voters in the same manner as other
12 questions are submitted under the provisions of the
13 "Pennsylvania Election Code." The question to be placed upon the
14 ballot shall be framed in the following form:
15 Do you favor the imposition of a (describe tax in millage
16 or rate) by (local government unit) to be used to
17 (purpose)?
18 (a.1) In addition to the statutory rate limits on real
19 estate taxes provided for counties generally, a county may, in
20 accordance with and for the purposes set forth in subsection
21 (a), impose a tax on real property not exceeding the millage
22 authorized by referendum as required by subsection (a).
23 * * *
24 Section 3. Sections 7.2(a) and 7.3 of the act, added
25 December 18, 1996 (P.L.994, No.153), are amended to read:
26 Section 7.2. Procedures to be Followed in Connection with
27 Acquisition of Real Property or Open Space Property Interests.--
28 (a) [A] Except for the mitigation of flood hazards, a local
29 government unit shall not acquire interests in real property
30 pursuant to this act unless that local government unit has by
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1 ordinance or resolution established procedures for reviewing
2 open space property interests considered for acquisition by the
3 local government unit, for rating the relative desirability of
4 interests in particular parcels of real estate and for
5 establishing the price the local government unit will pay.
6 * * *
7 Section 7.3. Borrowing Generally and the Acquisition of Open
8 Space Property Interests on an Installment Basis.--[A] Local
9 government units that are governed by 53 Pa.C.S. Pt. VII Subpt.
10 B (relating to indebtedness and borrowing) may incur
11 indebtedness under 53 Pa.C.S. Pt. VII Subpt. B for the purposes
12 of acquiring open space property interest in accordance with
13 this act, and a local government unit may authorize the
14 establishment of a program to purchase open space property
15 interests on an installment or other deferred basis. The
16 obligation of the local government unit to make payments on an
17 installment or other deferred basis shall not be subject to the
18 requirements of [section 602(b) or (c) of the act of July 12,
19 1972 (P.L.781, No.185), known as the "Local Government Unit Debt
20 Act."] 53 Pa.C.S. § 8142(b) or (c) (relating to limitations on
21 stated maturity dates). A landowner who enters into an
22 installment agreement with a local government unit shall
23 receive, in addition to the selling price, interest in an amount
24 or at a rate set forth in the purchase agreement.
25 Section 4. Sections 8 and 10 of the act, amended December
26 18, 1996 (P.L.994, No.153), are amended by adding subsections to
27 read:
28 Section 8. Exercise of Eminent Domain.--* * *
29 (c) An exercise of the power of eminent domain for the
30 purposes of this act shall be subject to restrictions and
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1 limitations imposed by Federal or State law.
2 Section 10. Termination or Disposition of Open Space
3 Property Interests.--* * *
4 (c) The authority to terminate or dispose of open space
5 property interests in accordance with this section shall be
6 subject to restrictions and limitations imposed by Federal or
7 State law.
8 Section 5. This act shall take effect in 60 days.
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