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This handbook aids its users in navigating the decisions involved in establishing and operating local municipal open space programs. It reviews Pennsylvania’s legal framework for open space protection, including what municipalities may or must do under the law, as well as impermissible actions. It describes a multitude of considerations and practices with supporting examples from twenty Pennsylvania municipalities.
This handbook seeks to aid its users in navigating the decisions involved in establishing and operating local municipal open space programs. It reviews Pennsylvania’s legal framework for open space protection, including what municipalities may or must do under the law, as well as impermissible actions. It describes a multitude of considerations and practices with supporting examples from twenty Pennsylvania municipalities. Each municipality comes to open space protection with a unique set of conditions that will influence the optimal shape of its program. Present and desired future land use; present and projected population; the natural and scenic character of the land; community needs; the capacity of municipal staff and elected officials; the availability of local land trusts and advisors; the interests, skills, and knowledge of volunteers; municipal finances and fundraising potential; public interest and involvement; existing and potential partnerships: all of these and other factors will inform a municipality’s open space protection efforts. The handbook helps local governments make the decisions and take the actions necessary to effectively conduct an open space program suited to the municipality’s circumstances.
Most of the hyperlinks contained in this handbook lead to resources posted in the WeConservePA Library, which is paywall-free thanks to WeConservePA’s supporters.
Voter-approved open space taxes and bond issues financially underpin many municipal open space programs. The handbook addresses open space funding referendums, but only briefly, as this topic is dealt with at length in other publications such as Referendum to Authorize a Tax or Bond for Conservation and Public Finance for Open Space: A Guide for Pennsylvania's Municipalities. Additional resources regarding open space referendums and operating open space programs can be found under the topic Municipal Open Space Programs and Referendums at the WeConservePA Library.
The WeConservePA report Local Municipal Open Space Referendums in Pennsylvania describes the 168 open space referendums offered to Pennsylvania voters at the local municipal level between 1996 and spring 2026. See the map below, which shows townships that have passed at least one open space referendum. (Thus far, townships are the only form of local municipality where voters have approved open space referendums.)
Subject to basic planning and legal requirements of the Open Space Lands Act (discussed below), a municipality may protect open space on an ad hoc basis, seeking to acquire this or that parcel as the benefits of acquiring the particular parcel and the opportunity to do so become evident—and as funding permits. However, local government can be more effective and efficient in delivering open space benefits if it:
An organized open space program offers the potential to leverage volunteer energy as well as community member knowledge and skills relevant to open space protection that might not otherwise be available to municipal governing bodies and staff. Establishing and operating an open space program can also foster the strategic long-term thinking and discipline necessary to successfully assemble many individual parcels into substantial conservation projects—whether in the form of major new parks, effective wildlife corridors, productive agricultural districts, scenic greenways, or some other community priority—that deliver large-scale open space benefits. The open space program may be led and supported—as appropriate to a particular municipality’s circumstances—by any combination of municipal staff, community volunteers, contracted professionals, and members of the governing body.
With the enactment of Act 442 of 1968,[1] “Preserving Land for Open Air Spaces,” the Pennsylvania General Assembly brought clarity to the rules by which the Commonwealth and its counties may protect open space within and around urban areas. Eighteen years later, the General Assembly broadened the applicability of the statute to all geographies and local government units and modified its title to read: “An act authorizing the Commonwealth of Pennsylvania and the local government units thereof to preserve, acquire or hold land for open space uses.” With this amendment, the General Assembly also authorized townships, boroughs, and cities (but not counties) to establish, via voter referendum, dedicated taxes for funding open space protection. This amendment, Act 153 of 1996,[2] is sometimes referenced directly because of the ground-breaking significance of the tax-enabling provisions. However, since Act 153 amends and does not replace the original law, this handbook will refer to the original statute, the 1996 amendment, and all subsequent amendments simply and collectively as the Open Space Lands Act.
The Open Space Lands Act’s Statement of Legislative Intent[3] reads:
It is the purpose of this act to clarify and broaden the existing methods by which the Commonwealth and its local government units may preserve land in or acquire land for open space uses. The Legislature finds that it is important to preserve open space and to meet needs for recreation, amenity, and conservation of natural resources, including farm land, forests, and a pure and adequate water supply. The acquisition and resale of property interests authorized by this act are hereby declared to be for the public benefit, for the advancement of the public health, safety, morals and general welfare of the citizens of the Commonwealth, and for the promotion of sound land development by preserving suitable open space and concentrating more dense development in nearby areas.
The open space uses promoted by the Act are defined as “land uses which are not inconsistent with the achievement of open space benefits.”[4] These open space benefits are in turn defined to be:
The benefits to the citizens of the Commonwealth and its local government units which result from the preservation or restriction of the use of selected predominantly undeveloped open spaces or areas, including but not limited to:
The Open Space Lands Act provides this list but does not limit the universe of acceptable open space benefits to it. Other potential benefits to consider may be found at the WeConservePA Library, which hosts a large number of studies and reports that document in detail the great number of economic, social, health, and environmental benefits of protecting open space.
The Open Space Lands Act provides some flexibility in the use of dedicated open space tax revenue within the bounds of providing open space benefits. Act 115 of 2013 amended the Act to authorize municipalities to use the revenue to:
Act 15 of 2022 further amended the Open Space Lands Act to allow the 25% to be used to develop, improve, design, engineer, and maintain any property acquired for an open space benefit (whether or not specifically acquired under the Open Space Lands Act).
(See the section “Permissible Uses of Open Space Tax Dollars” below for more detail.)
While the Open Space Lands Act explicitly authorizes acquisition of open space for a variety of purposes, it is not the sole statutory authority for the acquisition of property interests for uses that may be characterized as open space. For example:
Because acquisitions under the Open Space Lands Act are subject to special statutory requirements for acquisition, recordkeeping, management, and disposition, it matters whether an acquisition was made pursuant to the Act, or some other authority. For example, a municipality that acquires land under its general authority can identify and hold open numerous alternative public uses for the land, including resale or construction of public works facilities. By contrast, property acquired pursuant to the Open Space Lands Act is subject to the Act’s unique restrictions. This is not an abstract matter—imprecision regarding local government intent and source of authorization have resulted in protracted conflict and litigation For example, in 2024, citizens brought litigation challenging the development of a new municipal facility on a municipal-owned parcel in Upper Pottsgrove. Central to the dispute was whether the property was, in fact, acquired pursuant to the Open Space Lands Act.[9]
The Municipalities Planning Code allows local government to include an open space requirement in the subdivision and land development and zoning ordinances that shape development in the municipality. A local government that wants to ensure that common open space designated in new subdivisions remains open space in the long term must be careful to create legally enforceable open space protections when approving developments under these ordinances. Creation of this enforceability is the subject of the WeConservePA guide Restricting Development to What Is Approved in a Subdivision and Land Development Plan.
The first step in the development of an open space program is to consider its purpose. The purpose can be extremely broad, encompassing all of the open space benefits itemized in the Open Space Lands Act—or it might focus on a smaller subset. Rephrasing and expanding on the Act’s suggestions, program purposes may include but are not limited to the following:
Some municipalities seek to address a wide range of conservation concerns and purposes in the design of their open space programs:
In 2006, Whitemarsh Township adopted a long-range open space preservation plan with the ambitious objective of protecting 75 percent of the Township’s remaining undeveloped land—estimated at the time to be 4,000 acres, nearly one-third of the Township’s total land area. Township leaders implemented a comprehensive, multi-faceted strategy to achieve this objective. The Township focuses on conserving private woodlands, golf courses, working farms, scenic landscapes, and lands suitable for both passive and active recreation. Equal emphasis is placed on acquiring properties that create vital linkages between parks and open space areas, enhancing ecological connectivity and public access.
Other municipalities choose a narrower set of purposes for their programs:
Chadds Ford Township’s open space program identifies two goals: 1) protecting open spaces that maintain the township’s rural and unique character, and 2) providing recreational services to township residents. Early on, the township decided to focus on protecting sites of cultural and historical significance. Chadds Ford strives to uphold the township’s Revolutionary War history and increase the availability of recreational and tourism opportunities that pivot around art, history, and open space. The township has used their open space funds to acquire properties like Brinton Run, located on the Brandywine Battlefield, and Painter’s Folly, a property with a historic house that used to belong to Howard Pyle, the founder of the Brandywine School of Art.
Stroud Township’s environmental advisory council serves the municipality in part as its open space committee for advancing its open space program. The council steered the township’s open space program towards the prioritization of water resource protection and flood prevention (recognizing that the municipality had already succeeded in creating a significant amount of parkland and trails). The council continues to focus open space work on the properties along its streams.
Defining the purposes of an open space program informs myriad other decisions regarding program design and implementation. It jumpstarts the planning process, aids with educational outreach, suggests potential partnerships, and points to priority areas and projects.
The Open Space Lands Act requires that a municipality engage in some planning in advance of protecting open space pursuant to the Act:
The above requirements set a statutory floor for planning. A plan that more thoroughly addresses matters raised by open space protection can be helpful in implementing and guiding an open space program. For example, the act of acquiring fee land, a conservation easement, a trail easement, or another property interest is only the beginning of open space protection. A never-ending responsibility to steward the property interest follows. (See the section “Managing and Stewarding the Land” below.) Some considerations can be addressed on a parcel-by-parcel basis, while others are better considered as general matters affecting all acquisitions. Examples: If open space is to be acquired in fee, what trails and other public outdoor recreational facilities might be appropriate to build? How are wooded areas to be managed? What tasks will municipal staff, volunteers, or contractors have? For conservation easements, who is to monitor compliance and maintain communications with landowners?
What form should the resource, recreation, or land use plan take? Some municipalities include an open space protection section in their municipal comprehensive plan; however, having a separate open space plan allows for greater flexibility when making updates to the plan. Of the twenty townships interviewed for this handbook, thirteen have an independent open space plan separate from the township’s comprehensive plan or multi-municipal open space plan.
WeConservePA collects examples of municipal plans addressing open space under the topic Municipal Open Space, Park, and Recreation Plans at the WeConservePA Library. As suggested by the various names of these plans, there is no single correct approach to meeting the Open Space Lands Act standard or planning needs more generally. The municipality has wide discretion as to the content of the plan. In addition to providing some form of designation of lands it might consider for acquisition (as required by the Act), it might include any or all of the following items, and more, in the plan:
Municipalities have broad latitude to structure an open space planning process as desired. For example, a municipality may have its planning commission designate suitable open space properties but define its broader planning and implementation policy in a separate plan that can be adopted, implemented, and amended with or without planning commission oversight. Similarly, the ranking and acquisition requirements of Section 7.2 of the Act may be handled by a free-standing ordinance, or included in an expansive, formally adopted open space plan.
Some municipalities will have their open space committee, environmental advisory council, or planning commission develop their open space plan while others will seek help from an outside consultant or partner. Still others will use some combination of internal and external effort.
In 2021, East Marlborough Township released an updated Open Space, Recreation, and Environmental Resource Plan that the township developed with help from Brandywine Conservancy, their open space consultant, and Recreation and Parks Solutions. The township covered the plan’s cost with revenue from its dedicated property tax and with a grant from the Chester County Planning Commission’s Vision Partnership Program.
Some municipalities develop regional plans in cooperation with other municipalities.
Elk Township is one of six municipalities in the Oxford Region, located in the southwestern corner of Chester County. In 2012, municipalities released the Oxford Region Multimunicipal Comprehensive Plan, which includes an Open Space Inventory and Plan outlining regional goals and objectives; regional and municipal open space policies and regulations; recommendations for respective open space committees; and specific open space areas and networks across the region serving specific uses, such as the Oxford Corridor, the Hickory Hill Area, and the Octoraro & Mason‐Dixon Greenway.
Several funding pathways may be taken to support open space programs. Local government may use any or all of the following options:
To supplement and leverage these municipal-generated funds, local government may also:
Local governments may tap one or all of these funding sources. The desired scale of the program—the frequency and size of projects—and its purpose will influence the choice of funding sources, particularly with regard to grant programs (each of which has its own priorities, requirements, restrictions, and guidelines).
Below are descriptions and examples of these funding options. For additional reading on the benefits and disadvantages of different funding sources, see Public Finance for Open Space: A Guide for Pennsylvania’s Municipalities.
Pennsylvania municipalities are authorized by state law to impose local taxes on real estate, earned income, and realty transfer, but the amount that may be collected is statutorily capped. If existing tax rates are below statutory limits, municipalities may seek to increase one or more of these tax rates and earmark the revenues for open space purposes. The implementation of open space taxes enacted pursuant to general taxing authority (without voter approval) presents challenges that voter-authorized taxes do not have:
Radnor Township continually allocates 25% of its realty transfer tax revenue to its Open Space Fund. As of 2024, the fund is used for park improvement projects and debt service on prior open space bond issues.
In 1996, Act 153 amended the Open Space Lands Act to provide explicit authorization for townships, boroughs, and cities (but not counties) to establish—via voter referendum—a tax in excess of (or separate from) statutory limits to specifically fund open space projects. Municipalities may place the tax on (1) earned income (the most popular choice), or (2) real property. As a tax with legislative authorization apart from The Local Tax Enabling Act, the revenues are not subject to sharing or negotiation with local school districts. A municipality may only use funds from the dedicated tax for the specific purposes described in the Act. See Permissible Uses of Open Space Dollars below for more detail.
The 1996 amendment requires that a municipality pass an ordinance that defines the “specific rate of the additional tax to be imposed,” then follow the procedures of the Pennsylvania Election Code to implement the referendum and obtain approval by a majority vote at the next primary or general election. A ballot question to impose the tax must be phrased as follows:
Do you favor the imposition of a (describe tax in millage or earned income tax rate) by (local government unit) to be used to (purpose)?
Examples of municipal ordinances used to place an open space referendum on the ballot and enact open space taxes can be found in the WeConservePA Library under the topics Ordinances to Place a Measure on the Ballot and Ordinances to Enact Taxes and Borrowing. For a deeper look at the rules and mechanics (campaign finance, ethics, community organizing, etc.) that bear on an open space tax referendum, see the guide Referendum to Authorize a Tax or Bond for Conservation.
In 2000, the voters of West Rockhill Township passed a referendum that authorized a 0.125% increase to earned income taxes for funding the protection of open space. The township decided to conduct another referendum in 2004 to increase the open space EIT to 0.25% due to widespread public interest in the program. West Rockhill’s Open Space Committee and the Citizens of West Rockhill for Common Sense Taxation campaigned for the second open space tax referendum. This second referendum also passed. The Township seeks to protect one-third of the municipality’s 11,400 acres—3,300 acres of its natural, historic, and cultural legacy.
Consistent, ongoing revenue resulting from a dedicated open space tax allows municipalities to undertake multiple smaller projects in the near term, accumulate funds for years in preparation for larger-scale projects, or tackle large projects immediately with debt serviced by predictable revenues.
In 1999, East Marlborough Township passed a referendum authorizing a property tax increase of .02 mills for protection purposes. The tax went into effect in 2000 and supports the protection of water resources, woodlands, farmland, and recreational areas such as parks and trails. The tax has been generating an annual revenue of $200,000, allowing approximately $1 million to amass in their open space fund towards large purchases. The funding enables the township to acquire land and easements, maintain and make improvements on the land, and plan and design future projects. The level of expenditure fluctuates due to changing circumstances including landowner willingness to complete real estate transactions. Some projects that were of interest in 1999 took into the 2020s to complete.
Local governments may borrow from public or private lenders to finance open space projects where the municipality cannot (or does not desire to) pay the costs in full from existing funds. All new municipal borrowing, whether by loan, bond issue, or otherwise, requires prior approval by the Department of Community and Economic Development to ensure that the debt is properly authorized and does not exceed statutory municipal debt limits. If borrowing would place the municipality above its statutory debt limit,[14] the local government must first obtain public approval via referendum by following the procedures outlined in the Local Government Unit Debt Act.[15]
For large projects requiring long-term financing, issuing a municipal bond may be the most cost-effective and flexible way to meet borrowing needs. A municipality must first consult with legal and financial advisors to refine the project scope, borrowing needs, and municipal financial capacity. The municipality must then determine its legal debt limit and make appropriate filings with the Department of Community and Economic Development (DCED). After obtaining voter approval (only required if issuing the intended bond will take the total municipal debt obligation over the statutory limit), a municipality must prepare an ordinance—typically drafted by special legal counsel with bonding expertise—that defines the principal amount of the bond and the project(s) to be funded with the proceeds, as well as other key terms (interest rate, maturity schedule, repayment covenant, etc.). The municipality must submit the ordinance, together with supporting statements and exhibits, to DCED for final approval. With assistance of bond counsel, the municipality will prepare agreements and closing documents and market the bond—either by direct negotiation with a purchaser, or by public offering underwritten by investment banks. An important advantage of bonding for the municipal issuer is the ability to pay below-market interest, which investors happily accept because (1) interest received on municipal bonds is tax-free, and (2) municipal bonds have a low risk of default and offer stability to an investment portfolio. However, high transactional and legal costs of a bond issue can eat up interest savings for smaller principal amounts.[16]
Radnor Township received public approval to undertake two bond issues for open space protection, farmland preservation, and recreational opportunities. In 1994, voters authorized a $10 million bond issue, which the township used in 1996 to finance acquisitions and improve parks and trails. In 2006, voters authorized a $20 million bond issue to purchase three parcels.
For smaller projects, a conventional bank loan may be more practical and cost‑effective than issuing bonds. While bank loan interest rates are typically higher than tax‑exempt bond rates, municipalities avoid the substantial legal and transactional costs of a bond issue. For modest borrowing needs or shorter repayment periods, this often makes these conventional loans the less expensive option. In addition, the relatively short timeline for obtaining a bank loan can be important when a municipality must act quickly.
Even where a municipality has enacted a dedicated tax, it can take a long time for a municipality to accumulate enough open space funds to cover the cost of an expensive conservation project. Municipalities may choose to use open space taxes and debt financing in combination, borrowing a large sum of money and using the dedicated tax revenue to pay off the debt over many years. Combining these two funding mechanisms allows municipalities to undertake expensive and expansive projects that otherwise might not be feasible. The combination proves particularly useful in the case of a one-time opportunity to purchase a specific property that can provide exceptional public benefits. Moreover, the existence of a dedicated open space tax fund, particularly one enacted under the provisions of the Open Space Lands Act and earmarked for open space projects, may enhance the bond rating, thereby making it more desirable to investors and reducing borrowing costs.
In 2000, Springfield Township residents voted to increase their EIT by 0.25%, generating approximately $750,000 in annual revenue (in FY 2021) dedicated to open space protection. That same year, the township also conducted a referendum for a $3 million bond issue to jumpstart the open space program. That first vote to borrow failed, but in 2006, voters approved a $5 million open space bond. Since then, the township has used its dedicated tax to pay back the borrowed money, allocating approximately $675,000 of open space tax revenue annually to debt service.
West Pikeland Township passed an earned income tax increase of 0.25% for open space protection in 2007. The municipality issued a bond to purchase an important property in 2012. The township did not seek public approval for the bond, nor did it have obligation to do so since the borrowing would not put the township above the statutory debt limit. The township spent the borrowed funds within six months of issuing the bond, which is expected to be paid off over 20 years using open space tax revenue. West Pikeland applies about $500,000 of its roughly $700,000 in annual open space tax revenue toward this bond debt service.
Local governments may—and many do—allocate money from their general funds for open space protection. Coupling these allocations with dedicated taxes or bond revenue can accelerate open space protection efforts. This approach can also provide a municipality with more flexibility in program implementation since money from the general fund is not affected by rules limiting the use of revenue from voter-authorized open space taxes. For example, while the Open Space Lands Act limits the amount of dedicated open space tax revenues that may be used for maintenance, design, or improvement of open space properties,[17] there are no specific limitations on use of general fund dollars for these purposes.
In 2008, Charlestown Township approved a 0.5% EIT increase for open space protection, generating an annual revenue of $1.8 million. Additionally, the township allocates 0.5% of its earned income tax revenue from its general fund into its open space program, providing in total $3.5 million annually for open space protection. The municipality uses the voter-approved tax for land transactions and the general fund money to maintain and improve open space properties. Because of these revenue sources, Charlestown has protected nearly 40% of its land.
Local governments may supplement their open space dedicated tax, bond issues, and general tax revenue with funding from federal and state agencies, as well as private foundations, by applying to relevant programs. This type of funding, however, is not reliable or recurrent. The money that may be secured is likely to come with specific requirements and restrictions that might limit its utility for the municipality. Nevertheless, state, federal, and private grants—when available—can be a great way to supplement and leverage a municipality’s internally generated open space dollars.
The Keystone Recreation, Park and Conservation Fund, administered by the Pennsylvania Department of Conservation and Natural Resources (DCNR) under its Community Conservation Partnership Program, is the principal state government source of funding for parks and open space protection. DCNR also awards grants using funding sources such as the federal Land and Water Conservation Fund under its Community Conservation Partnerships Program rubric. Regional DCNR staff can help local government representatives identify appropriate funding opportunities.
Another significant state grant source is the Greenways, Trails, and Recreation Program of the Commonwealth Financing Authority.
Several counties have open space protection programs that provide grants to local municipalities for land conservation and outdoor recreation projects.
In 2006, East Pikeland Township voters approved a 0.25% EIT increase for open space. In 2018, the township used its accumulating open space tax revenue to leverage a grant from Chester County and another $1.5 million grant from the Land and Water Conservation Fund (via the Pennsylvania Department of Conservation and Natural Resources) to purchase a 115-acre property. The grants saved East Pikeland from using all of its own dedicated tax revenue for the purchase, giving the municipality a strong head start toward having enough money for its next open space purchase.
Most private foundations have quite specific interests and criteria for awarding grants. The geographic location of a project matters as do the concerns of the foundation’s trustees and staff. Personal connections to the people of the foundation can be important.
Community foundations host donor-advised funds that allow a donor to make upfront tax‑deductible contributions to the foundation and then recommend to the foundation the grants to be made to qualified recipients over time using the donor’s contributions. A local government can check with the local community foundation to see if any donor-advised funds might be a good match for the municipality’s open space protection plans.
Installment agreements, authorized by the Open Space Lands Act, offer an alternative to debt financing for acquisition of land. Sometimes referred to as lease/purchase, installment agreements vest the municipality with immediate rights to the use and possession of land, but do not involve transfer title until a defined number of installment payments have been made to the landowner.[18] This approach has the distinct advantage of exemption from the debt limits and procedural requirements of the Local Government Unit Debt Act, and may benefit the landowner by spreading taxable income over a longer period of time. However, because title will remain in the landowner until payment in full, the agreement must be meticulously drafted to protect the municipality’s investment from the inherent risks involved with a landowner acting as a de facto creditor.
A local government may be able to find partners to help in building and operating their open space program. Potential partners, depending on location in the commonwealth, include land trusts, the county, and neighboring municipalities. These partnerships can be formal or informal and be initiated at any time, from the earliest stages of contemplating a program to when the municipality is actively completing land protection transactions under the program.
The most common partnership municipalities develop when establishing or maintaining an open space program is with a land trust, a charitable organization that conserves land in the public interest. Land trusts work cooperatively with landowners to complete real estate transactions, sometimes purchasing property interests and sometimes accepting donations of those interests. Land trusts also work to ensure that land previously acquired or placed under conservation easement is properly conserved.
Under Pennsylvania law governing charitable organizations (and reinforced by federal tax law applicable to 501(c)(3) entities), land trusts are legally bound to operate exclusively for charitable purposes and to hold their assets in trust for the benefit of the public. As such, land trusts are credible organizations that align well with municipal governments. By working together, municipalities and land trusts can leverage complementary strengths—public authority and nonprofit flexibility—to secure, manage, and protect open spaces in ways that maximize long‑term public value and trust.
Well-established land trusts can be a strong asset for municipalities seeking to protect open space. They often have staff dedicated to completing conservation real estate transactions and who have substantial experience with land conservation planning, landowner outreach, negotiations, managing the moving parts of a real estate transaction, and stewardship of the lands or easements acquired.
The WeConservePA guide What Is a Land Trust? provides a two-page introduction to these organizations.
Partnering with a land trust to facilitate open space protection across some or all stages of the process enables local government to be more economic, strategic, and resourceful with their open space programs and their dedicated funds.
A municipality may establish a formal agreement with a land trust or work on a more informal basis as circumstances dictate. The municipality may develop partnerships with multiple land trusts and seek assistance from each as appropriate to the need. For instance, Township Z uses Land Trust A as an open space planning consultant, Land Trust B to help with negotiations and real estate transactions, and Land Trust C to monitor properties under conservation easement. Of the twenty townships featured in this guide, at least eighteen have partnered with one or more land trusts in various aspects of their open space programs.
A great many land trusts operate in Pennsylvania and engage in the technical assistance, training, and peer-sharing opportunities offered by WeConservePA to help them operate effectively. To identify the land trusts working in a particular area, WeConservePA provides a Find a Group service by county of interest as well as a more precise but complex locator at its website.
If the governing body deems it to be for the public benefit, a municipality may:
The General Assembly established this clear authorization for local government to support land trusts with the Act of Nov. 29, 2006, P.L. 1418, No. 154 (which amended the Open Space Lands Act). The quotes above are drawn directly from the Act. See the WeConservePA guide Pennsylvania Local Governments May Support Land Trusts for more information.
(In addition to the Open Space Lands Act authority, second-class townships have clear statutory authority under the Second Class Township Code[19] to convey land to nonprofits for open space purposes without being required to engage in a process to ensure the township receives fair value.)
Municipal appropriations of open space tax revenue to a land trust pursuant to Section 11.1 of the Open Space Lands Act must be aligned with the permissible uses of open space tax revenue described in Section 7.1 of the Act. Accordingly, municipalities use open space tax revenues to:
Richland Township has had a long-standing relationship with Heritage Conservancy, which helped to pass the township’s first open space referendums in 2002. Since that time, the township has developed a formal partnership with the land trust, with whom they hold a contract. Heritage Conservancy assists the open space program by supporting its planning, educational efforts, landowner outreach, and prioritization process. Of the township’s 1,300 acres of protected open space, 1,000 are protected with conservation easements, most of which the municipality co-holds with Heritage Conservancy. The land trust is in charge of monitoring easements annually, relieving the township of this essential conservation task. Richland’s partnership with Heritage Conservancy has also been pivotal in finding and leveraging additional funding sources for open space projects.
Instead of developing a formal partnership with a single land trust, East Bradford Township works with various land trusts on a project-basis depending on the open space project. The township works with Natural Lands when seeking and establishing conservation easements, North American Land Trust when acquiring land, and Brandywine Conservancy for open space planning and consulting.
The East Marlborough Land Trust formed in 1994. The idea of passing a referendum to authorize a dedicated revenue source for open space protection originated with the land trust, which led the campaign that resulted in a dedicated property tax in 1999. The land trust’s board of trustees leads the township’s open space program and applies for county and state grants to leverage funds for open space protection. As of 2021, the land trust had approximately one million dollars that it applies to land protection projects and conservation easement monitoring.
While most local governments have found it simpler and more convenient to work with an independent land trust, some have created a local land trust to focus exclusively on their municipality.
A local government may incorporate a “local land trust” after adopting an ordinance signifying its intention to do so. This government-created land trust would function as a Pennsylvania domestic nonprofit corporation except that the following rules apply:
These rules are paraphrased from Act 154 of 2006, the same law referenced above that facilitated partnerships with land trusts.[20]
WeConservePA encourages parties to explore partnering with existing land trusts before moving to establish new land trusts—independent or government-created—because established land trusts typically possess a depth of expertise that make them far more effective and efficient in their operations than any new entity. In addition, multiple organizations generate duplicative and costly administrative expenses such as accounting, auditing, and tax filing fees, as well as insurance.
West Pikeland Land Trust, founded by the township’s board of supervisors in 1999, works as an extension of the township and helps advance the open space program. The local land trust assesses and recommends potential projects, meets with landowners, and prepares grant applications. The land trust promotes the program across the township, communicating the importance and benefits of conserving land. The land trust works with the Open Space Committee, flagging potential properties so that the committee can visit them and score them before making recommendations to the board of supervisors. West Pikeland Land Trust has facilitated the protection of more than 600 acres of parks and recreation areas, and preserved nearly 1,500 additional acres with conservation easements, a total of 37% of the township.
Some counties have established programs that provide grants to local municipalities in support of open space projects. The programs condition receipt of county funds on a municipality meeting specified conditions. These conditions can serve to provide helpful structure to the municipality’s open space program operations. Besides financial support, some municipalities are able to receive assistance from their county’s planning office for developing resource, recreation, or open space plans that are used to guide open space acquisition targets and strategies.
The Open Lands Division of the Chester County’s Department of Parks and Protection has provided robust support year-after-year to Elk Township (and many other municipalities) for their open space projects. Many of the township’s projects have been agricultural conservation easements, which they co-hold with Chester County under the farmland preservation program administered by the Chester County Agricultural Land Preservation Board. Elk’s open space funds usually cover 40-50% of a project, and the Open Lands Division or Agricultural Land Preservation Board often cover the rest. When receiving grants from Chester County, the township has to comply with the programs’ respective guidelines and requirements, such as forming a steering committee, having public involvement, and using model easements and declarations of public trust.
Northampton County’s Division of Parks, Recreation and Conservation advances the goals of the County’s 2015 open space plan entitled Livable Landscapes: An Open Space Plan for Northampton County. This includes administration of a grant program that helps municipalities (and nonprofits) to acquire, restore, and enhance lands for conservation and recreation. In 2026, the County combined the division of parks and recreation and the division of farmland preservation program and is updating the Livable Landscapes Plan. Through past accomplishments, the Division conserved over 20,000 acres and 250 farms and has provided $10.7 million of grant funds to preserve 3,517 acres of open space lands, with a 1:2 match ratio with federal, state, local, and other funding sources.
Most Pennsylvania counties participate in the agricultural conservation easement purchase program funded by the state’s Agricultural Conservation Easement Purchase Fund.[21] Many of these counties invest their own county funds in the program, which leverage additional state funds for agricultural preservation.
The state’s Agricultural Area Security Law and attendant regulations dictate that the state-supported preservation work must focus on promoting agricultural production rather than scenic, recreational, wildlife, or other open space benefits. The county programs must also prioritize and implement their projects within the strict bounds of the state law. The programs are compared and contrasted with land trust conservation efforts in the guide Farmland Preservation Options for Landowners. Municipal open space programs typically have the same flexibility and approaches ascribed to land trusts in the guide.
Municipal outreach to the county program can lead to the identification of one or more opportunities to cooperate in advancing the goals of each party.
Streams, wildlife, and other natural resources do not follow political subdivision boundaries. Stormwater that may be absorbed and floodwater that might be prevented by conserving open space do not respect municipal jurisdictions. The public has little care whether a scenic view happens to fall on one side or another of a township line. As such, some municipalities partner with neighboring jurisdictions when planning their open space program or completing specific projects.
Lower Saucon Township authorized three consecutive 5-year EIT increases of 0.25% in 2006, 2011, and 2016 for open space protection. Upon passing its first open space referendum, Lower Saucon worked closely with adjacent Springfield Township, in Bucks County, to learn from its open space program, which had started in the year 2000. The headwaters of Cooks Stream, which passes through Springfield, are in Lower Saucon, leading the townships to partner on a few projects.
In 2019, Charlestown Township partnered with East Whiteland Township to acquire a 142-acre property located in both jurisdictions and develop the Balderson Tract for trails and passive recreation. Forty percent of the property is located in Charlestown and borders the Charlestown Oaks, one of the township’s open space properties. Both townships worked together to obtain funding from DCNR, Chester County, and Natural Lands in support of the project.
Partnerships with organizations and institutions are not the only way to embrace support from outside the municipal board. Local government can engage with residents and invite them to lead or participate in their open space program. Most municipalities with open space programs have a dedicated group of volunteers who help review land protection efforts. This allows them to leverage public support, expand their bandwidth, and take in community feedback. It may also serve as an effective strategy to make the open space program more approachable and familiar to community members and landowners who might potentially participate in the program.
These advisory groups may also play a key role in keeping the public informed. Some advisory groups release annual open space reports that make it easier to assess and promote the success of the program from year to year. They also keep the public informed about the use of tax dollars on projects that improve the quality of life for residents.
Though not required by the Open Space Lands Act, thirteen out of the 20 townships interviewed for this guide have established an open space committee that serves as an advisory body—and sometimes to a limited extent, the implementing body—for the open space program. Depending on the needs and circumstances of a particular municipality, the committees and their members may watch for and report on open space protection opportunities, engage in landowner outreach, cultivate relationships with potential funders, prepare grant applications, visit and assess possible acquisition project sites, rate and rank parcels as to their significance and value to the municipality, and make recommendations to the municipality’s governing body. They may take on more or fewer tasks as appropriate to the local situation.
An open space committee may go by a name other than “open space committee”; for example, the Environmental Resource Committee, the Land and Environmental Protection Board, and the Conservation Committee, among many others).
The open space committee taps volunteer energy and expertise. In some cases, the recommendations of these groups prompt the township to hold an open space referendum, but they are often formed following a governing body’s decision to hold a referendum or after the referendum is passed.
An open space committee is typically comprised of five to ten volunteers, with a municipal official and a representative from the planning commission as liaisons. The most successful committees are those with a diverse set of skills, professions, and knowledge so that they are able to engage productively in various stages and components of the program. Some municipalities leverage the support or involvement of individuals who are employees or active members of conservation organizations. Open space committee meetings may meet monthly, on an as-needed basis, or on some other schedule.
In 2010, East Coventry Township authorized a 0.25% EIT increase for open space protection. One year after the referendum passed, the township formed the East Coventry Township Open Space Committee via Resolution No. 2011-24, which states the powers and responsibilities of the group. The group meets eight to ten times a year and is comprised of seven advisory members who volunteer their time and are appointed by the township’s governing body. The township supervisors appoint one member from the Board of Supervisors, one from the Planning Commission, one from the Parks and Recreation Committee, another from the Historic Commission, and three at-large volunteers. All members serve four-year terms. The group advises the township board on current and potential open space negotiations, recommends practices or tools for enhancing open space benefits, prioritizes projects and financial expenditures, and keeps an index of protected open space areas.
Any municipality in Pennsylvania may establish an environmental advisory council to tap the skills and volunteer energy of its citizens. EACs are defined and authorized by Act 148 of 1973 (amended in 1996 as P.L. 1158, No. 177). Consisting of three to seven members appointed by the local government, the tasks undertaken by an EAC are determined by the needs of the municipality. An EAC may research issues and advise local government officials to help inform decision-making regarding the environment. It may also undertake an array of on-the-ground conservation projects, planning of new conservation initiatives, and environmental education efforts. Consistent with this, an EAC may serve as a municipality’s open space committee.
The formation of an EAC is an option available to municipalities; state law does not require it. It is up to those people interested in seeing one established, whether they be municipal officials or residents, to propose establishment to members of the municipality’s governing body. If a municipality’s governing body chooses to create an EAC, it must do so by passing an ordinance, which provides the statutory authorization for EACs.
Rather than establishing a separate open space committee, some municipalities choose to grant that role to the EAC or a subgroup of the council. Three out of the twenty townships interviewed for this guide use their EAC to advise and coordinate the municipality’s open space program. For more information on EACs, refer to the Environmental Advisory Council Handbook or to the shorter guide, Environmental Advisory Council: A Versatile Arm for Pennsylvania Local Government.
In 2002, Stroud Township’s governing board established its environmental advisory council, which helps oversee the open space program by touring potential properties, talking to landowners, ranking projects, and providing recommendations to the township board. Stroud’s EAC is comprised of six members: the township manager, an in-house engineer, a member of the planning commission, and three Stroud residents. The EAC meets on a monthly basis.
Advisory bodies created by a Pennsylvania municipality to provide guidance or recommendations on its open space program may be subject to the Pennsylvania Sunshine Act.[22] The Act applies to any “agency” which includes advisory boards, commissions, or committees established by a political subdivision and authorized to render advice or deliberate on public business. Generally, if such a body meets as a quorum to discuss, deliberate, or formulate recommendations to elected officials on open space matters, its meetings must be open to the public, advertised in advance, and conducted in accordance with transparency requirements—including posting of agendas, taking of minutes, and limited use of executive sessions. The Sunshine Act may not apply to an informal working group formed within the municipal administration chain of command. For example, a member of the municipal staff might convene an informal working group to provide input, and then recommend actions or policies to elected leadership. In general, the more formal the creation of the body and appointment of its members, the more likely the Sunshine Act applies. Environmental advisory councils have a clear statutory definition that necessarily subjects them to Sunshine Act requirements. Because an “open space committee” has no statutory basis, it may or may not be subject to the Act, depending on its structure and role.
Some local governments establish the position or function of “open space coordinator” (or “open space director” or “natural resources manager” or other title) to advance open space protection in the municipality. Such a position can expand the scope and volume of actions possible for an open space program and relieve some burdens on elected and other appointed officials. Moreover, it can facilitate and enhance the efforts of an open space committee. Having a consistent point-person makes it easier to forge important relationships with owners of potential open space properties, residents in general, land trusts, funders, the county, and other possible stakeholders in open space protection. Assigning a specific individual to be responsible for the advancement of the program or various of its elements helps ensure the continuity and effectiveness of the program even through election cycles and leadership changes within the municipality.
No court has addressed the permissibility of paying an open space coordinator’s compensation from the proceeds of a voter-authorized dedicated open space tax. The Act does not prohibit the payment of municipal staff expenses, but it does restrict expenditures to one or more of the uses described in the Act. Accordingly, time spent on duties that do not correspond with the Act’s permitted uses must be paid from other revenues. For example, an employee’s preparation of an open space plan or maintenance of open space lands may be appropriate expenses, but time spent on general public or landowner outreach would likely not.
Bushkill Township passed an open space referendum in 2005 to authorize a 0.25% EIT increase. The township’s open space program has been immensely successful since, working with various partners to protect more than 1,500 acres of land, including farmland, riparian buffers, wetland areas, greenways, trails, and parks. In 2019, Bushkill hired a full-time Open Space Coordinator to oversee and facilitate the open space program, whose accomplishments have gained wide public support. The Open Space Coordinator is in charge of landowner outreach and negotiations, managing stewardship, and ensuring the township follows and fulfills its Open Space Plan, among other tasks. After the Township’s environmental advisory council shares the property’s open space score with the board of supervisors and provides a recommendation, the Open Space Coordinator orders an appraisal if the project is approved.
Transparent and accessible information inspires public confidence and opens doors. An open space program webpage can be an effective tool for informing residents, landowners, and potential project partners about the program, its successes, and future opportunities. Information to include at the webpage might include:
Some local government may also post information about project costs and overall open space expenditures as well as balances available for new projects.
Guides, flyers, brochures, and other types of educational materials can be particularly helpful for outreach when examples are adapted to the municipality and the language is accessible to those who do not work in the field of conservation. Examples of outreach materials include:
A municipality may have identified the types of land it wants to conserve and may have prioritized parcels to acquire or place under conservation easement. However, conservation acquisitions ultimately require willing sellers.
An open space program will want to find ways to connect with relevant landowners and inform them of the program’s potential interest. It can take considerable time and outreach for a landowner to become ready and willing to sell their land or place their land under easement. Without substantial outreach, a program could find itself with plenty of money in the bank but no one willing to sell their land or an easement. A program’s ability to complete projects may in part dictate the frequency and intensity of its landowner outreach.
Well-planned social gatherings for prospective landowner-sellers with open space program stakeholders (including folks who have already sold or donated land to the municipality) can be a great way to introduce and inform the prospective landowner-sellers of what is possible and build relationships that can lead to success.
Every couple of years, Elk Township hosts landowner meet-and-greet events or reunions. They encourage guests to bring food, including produce from their farms if they have one. The township also invites representatives from land trusts and other conservation organizations and asks them to speak about open space protection and its benefits. They invite landowners who are not part of the open space program so that they can connect with landowners who have protected their properties — a great way to create networking opportunities, leverage support, and foster a deeper understanding of the program among Elk residents.
People generally want to work with people—not faceless programs—and having the right people interacting with and building relationships with landowners can be crucial to moving conservation projects forward. A program will generally benefit from representatives who are friendly, inspire trust, and carry gravitas. For some projects, a person who has certain social connections could be crucial. A local government or its open space committee should be deliberate in determining the best people generally or for a specific situation. The pool of potentially appropriate people includes but is not limited to:
Charlestown Township had an Open Space Committee and Open Space Director until 2016, when the township stopped considering it necessary. Since then, the township supervisors have been in charge of landowner outreach and land negotiations. Charlestown partners with French and Pickering Creek Conservation Trust and North American Land Trust for the preparation of conservation easements, but township supervisors are the ones who visit prospective properties, encourage landowners to protect their land, and handle negotiations. The landowners already know the township officials, which facilitates the outreach.
Landowners may feel uncomfortable working with government officials, or government officials may lack the time or skill sets to ably reach out to landowners. In any case, it may often make sense for a municipality to partner with a land trust to carry out landowner outreach.
Richland Township has staff from Heritage Conservancy do a lot of the landowner outreach because, over the years, they have noticed that some farmers and other landowners do not trust the township with land transactions and would rather negotiate with an outside organization that specializes in the field. Richland contracts with Heritage Conservancy to provide these education and outreach services.
In some areas, interest in conservation is widespread and municipalities receive inquiries from numerous landowners who want to conserve their land. Most municipalities that have strong landowner interest set up a process for landowners to express their interest. Landowners typically complete an application form that collects key information about the particular property to aid the municipality in filtering, prioritizing, and reviewing potential projects. Posting this form on the municipality’s open space webpage helps optimize accessibility for landowners. For example, Richland Township (Bucks County) posts a one-page form (with its other forms and documents) that landowners may complete and mail to the Preservation Board if they are interested in conserving their land.
In Moore Township, landowners interested in conserving their land must complete an application. The township’s Land and Environmental Protection Board visits the property, tours it, and uses a ranking sheet with open space criteria to evaluate whether the township should use open space funds to protect the property via a conservation easement.
Which open space is protected by a municipality depends on many factors, including available funds, timing, and landowner interest. Establishing a clear system for reviewing and prioritizing potential acquisition projects optimizes resources and makes decision-making more efficient and transparent.
The Open Space Lands Act requires that before a municipality acquires open space property interests under the Act, the municipality must establish through ordinance or resolution:
procedures for reviewing open space property interests considered for acquisition by the local government unit, for rating the relative desirability of interests in particular parcels of real estate and for establishing the price the local government unit will pay.[23]
For a tool on how to choose which conservation projects to pursue, refer to the guide Prioritization of Conservation Projects or the many resources found under the Strategic Conservation Planning and Project Ranking Systems topic headings at the WeConservePA Library.
A defined ranking system becomes especially important if several landowners in the municipality are interested in protecting their land. Absent some objective criteria to guide the decision, landowners and residents might suspect that the municipality is favoring certain landowners or being imprudent with municipal dollars.
Ranking systems can take a variety of forms. A municipality may develop a simple checklist of features most important to the particular community (for example, opportunity to set aside land for a future trail or park, protect wildlife corridors, absorb stormwater, protect a scenic view, expand upon existing contiguous open space) and then undertake the projects that check the most boxes. Others use complex scoring systems that quantify the conservation value delivered by each of a property’s key characteristics.
The criteria that influence the municipality’s ranking system will vary from municipality to municipality and should coincide with the purpose of the open space program and its conservation objectives. Municipalities must update their ranking system accordingly to match their changing landscapes, needs, and interests. If the individual or group in charge of ranking notices that a project’s ranking is not representative of its conservation value, the ranking system must be revised to account for missing or skewed criteria.
After landowners apply to get their properties protected, West Pikeland Township ranks prospective open space projects with a weighted scoring system that prioritizes recreational needs and resource protection. The most valuable characteristics have a score of 3 and the least valuable a score of 1.
The township then adds up the value scores for an overall score, which represents the property’s relative value in relation to other properties for open space protection. The Open Space Committee combines these results with identification and assessment of non-quantified factors and characteristics that are not captured by the system when evaluating and prioritizing projects.
WeConservePA maintains a collection of project ranking systems at the WeConservePA Library.
The Pennsylvania Municipalities Planning Code empowers municipalities to establish an official map to show existing and proposed public lands and facilities including trails, parks, networks of open space, road improvements, or other public uses.[24] The official map expresses the municipality’s interest in acquiring—at some future (perhaps far future) date—particular lands for public purposes. This expression of intent does not affect private ownership, or the ability of landowners to continue the current use of their property. It does, however, provide that if an owner notifies a municipality of their intention to build, subdivide, or otherwise alter property identified on the map in a way that requires municipal approval, the municipality will have a one-year window of opportunity to seek to acquire the property from the owner before the owner will be able to proceed with their intended action.
When the owner of an official map-designated parcel notifies the municipality of an intent to do something with the land that requires municipal approval, the municipality may either:
In the latter instance, the municipality and owner may negotiate the sale of the land or an easement, or they may agree to an alternative approach. If after a year the municipality and owners have not come to an arrangement, the owners are free to proceed with building on, subdividing, or otherwise developing the land.
Official maps are thus a powerful tool to help municipalities clearly communicate plans and interests, create opportunities to negotiate with property owners, and achieve open space priorities. For more information about official maps, see the guide Official Map.
East Bradford Township uses and updates its official map on an ongoing basis. In addition to previously conserved lands, the map shows the properties the township has identified for future trails, parkland, and protected open space. The document has changed significantly over the years, especially with the acquisition successes of the open space program.
Guided by the municipality’s planning work, an open space program may develop and maintain for its internal use a readily updatable, informal list of properties it wishes to protect with open space funds. Such a wish list—fluid in nature and non-binding for the local government or anyone else—can be used to keep high-ranking properties on the radar and guide outreach efforts to property owners.
Since the start of its program in 2007, East Pikeland Township has maintained an Open Space Property List as an internal guiding document, which includes the parcels the Open Space Committee has determined should be protected and prioritized. The Open Space Committee regularly reviews and revises the Open Space Property List. Whether the committee follows through with acquiring any particular property on the wish list depends on the willingness of the property owner and other circumstances that might make one project more feasible than another.
Municipalities may simply purchase or accept gifts of land.
Chadds Ford Township uses its open space funds to purchase the forested headwaters of streams, other woodlands, and sites of cultural and historical significance. Since providing recreational opportunities is a priority, the majority of acquisition projects are for preserves or parks with public access. Chadds Ford directs landowners interested in conservation easements to Brandywine Conservancy, which is based in the township.
The majority of Lower Saucon Township’s open space projects are conservation easements. Nevertheless, the township does use open space funds to acquire property if the land provides (or could provide) important open space benefits that are threatened with development. For instance, in 2015 the township used $1.7 million (38% from open space funds and the rest from state and county funds) to acquire 148 acres of the former 165-acre Woodland Hills Country Club property that was going to be converted into a residential subdivision, which would have exacerbated flooding along the east branch of Saucon Creek. Since its purchase, the municipality has rewilded the property, established riparian buffers, and added mowed trails for passive recreation.
Municipalities may wish to conserve land but keep the land in private ownership and use. In many situations, obtaining a conservation easement, as opposed to acquiring the land directly, may be a desirable option. For example:
The conservation easement is a tool for conserving land in the public interest that allows private landowners to maintain ownership and control of the land to be conserved. Tens of thousands of properties important to people—millions of acres of farms, forests, scenic hillsides, historic landscapes, urban green spaces, etc.—have been conserved with conservation easements. Eighteen out of the nineteen municipalities interviewed for this guide hold or co-hold conservation easements or assist in their establishment as part of their open space program.
WeConservePA publishes dozens of guides on conservation easement topics and hosts hundreds of easement-related resources at the WeConservePA Library. WeConservePA also publishes the Model Grant of Conservation Easement and Declaration of Covenants, the most widely used and peer-reviewed easement document in the country.
A conservation easement is established by mutual agreement between a landowner and a private land trust or government. While keeping the land in the owner’s control, the easement limits certain uses of the land in order to achieve particular conservation objectives. The owner may continue to use the land as the owner wishes—within the constraints agreed to when establishing the easement. The conservation easement, which is an interest in real property (not merely a contractual agreement), remains in effect no matter who owns the land in the future.
A conservation easement does not create a right for the public to access a property unless the owner explicitly establishes that right. (Note: some funders of conservation projects require some form of public access to the land to be conserved as a condition of their support.)
The establishment of a conservation easement does not automatically ensure the permanent conservation of a property. Continued protection of the land requires the holder of the conservation easement (the municipality or perhaps its partner land trust) to exercise the right provided by the easement to block any use of the land inconsistent with the conservation objectives. To do so, the holder must proactively monitor conditions on the land to know if and when action is necessary. Acquiring, stewarding, and enforcing conservation easements is a long-term obligation that should not be entered lightly or unpreparedly. Proper planning, resource allocation, and a commitment to the continuing education of those managing easements will all be necessary.
Due to these demands, partnering with a land trust for conservation easements may be key to long-term success. Land trusts can help deal with the complexities and work of preparing, establishing, holding, and enforcing easements.
Newlin Township partners with Brandywine Conservancy, Natural Lands, and the Brandywine Red Clay Alliance to protect land using conservation easements, contracting with one organization or another as appropriate to the circumstances of each project. The land trusts hold the acquired conservation easements and thus the responsibilities of monitoring and enforcing them.
A municipality may choose to co-hold a conservation easement with a land trust or—the better practice—serve as an easement beneficiary, meaning it holds rights regarding the land as specified in the easement document but is not obligated to manage or enforce the easement.
Because Springfield Township prefers not to acquire land unless the land is gifted, most of its open space funds are spent on conservation easements, which the township co-holds with Heritage Conservancy, with which it contracts for services. The municipality covers the cost of baseline documentation and conducts annual inspection on eased properties. It is the land trust’s responsibility to ensure the landowner is complying with the easement.
About 40% of the land protected by Bushkill Township using open space funds has conservation easements on it. The township holds the easements, but they often reach out to Heritage Conservancy, their consultant, if they have questions or encounter challenges, such as the need to amend an easement document or appropriately steward a particular property. Bushkill has protected approximately 600 acres of open space through conservation easements.
A landowner is willing to convey their land to a municipality but is not interested in a conservation easement; the municipality wants to conserve the land but does not wish to own it. For this circumstance, the Open Space Lands Act provides a strategy: the municipality may purchase (or accept a donation of) the land from the owner, place a conservation easement over the land, and then sell the easement-restricted land to a willing buyer.[25] To avoid misunderstandings and conflict, the municipality’s intention to use this strategy should be made explicit at the public hearing preceding the acquisition and in the governing body’s authorization of the acquisition. (The subsection Planning for Flexibility in Achieving Open Space Benefits under the chapter Terminating or Otherwise Altering Open Space Property Interests elaborates on this matter.)
Bushkill Township has achieved the majority of its open space protection by acquiring the land. However, the township sometimes uses its open space taxes to cover short-term land purchases that it then protects with conservation easements. Once the land has been conserved, the township sells the protected property via an auction. If there is no house on the property, the new landowner can use up to two acres of the land to build a primary residence. This allows the property to remain in private ownership and continue contributing to municipal taxes.
Moore Township sometimes purchases farmland from a landowner for the appraised value or less if the landowner is willing to sell but not interested in going through the farmland preservation process. The township then applies to the Northampton County Land Preservation Program to place an easement on the property. Moore Township then sells the property to another farmer for a lower cost due to its land use restrictions, ensuring the farm is preserved in perpetuity while providing farmers the opportunity to obtain farmland at an affordable price.
By donating or selling a trail easement to a municipality (or land trust), landowners can make their land available for a public trail for walking, running, bicycling, or other recreational or transportation purposes without having to subdivide the land or lose ownership and control of the land. Real estate transactions can bundle together a grant of trail easement (to protect a narrow corridor of land and provide public access to it) with a conservation easement (to protect the open space surrounding the trail) or focus on just the narrow trail corridor as appropriate to the situation. WeConservePA maintains extensive guidance at the WeConservePA Library regarding trail easements including long-form and short-form model trail easement documents.
WeConservePA also maintains model legal documents for securing other forms of access including for fishing and boating.
The Open Space Lands Act explicitly authorizes municipalities to utilize a full range of legal tools to protect open space, including acquisition of any “remainder, future interest, transferable development right (TDR), lease, license, restriction or covenant of any sort, option or contractual interest or right concerning the use of or power to transfer property.”[26] One or more of these may prove useful as a means to acquire fee ownership of a desired land. For example:
While each of these methods is defined in the Open Space Lands Act as an “interest in real property,” anything less than fully vested title or a conservation easement involves greater risk that intended protections may not materialize. For this reason, careful drafting and legal review are essential.
Land and easement acquisitions are not the only methods at the disposal of municipalities to protect open space. When carefully designed, land use regulations (primarily zoning ordinances and subdivision and land development ordinances) allow municipalities to better shape development and provide for open space. (When not carefully designed, they can prove counterproductive, for example, focusing heavily on promoting single family houses on large lots that consume large volumes of countryside to the exclusion of denser development options.)
The Land Use Regulation & Development Design guides at the WeConservePA Library describe a variety of regulatory tools for protecting open space and natural resources. These guides are accompanied by examples of municipal ordinances and other supporting materials. Two of these tools are briefly described below as is the matter of public infrastructure choices.
Implementations of the Conservation by Design land use planning approach can be especially powerful in protecting open space while providing for development.[28] By making several small but significant changes to three municipal documents—the comprehensive plan, zoning ordinance, and subdivision and land development ordinance (SALDO)—Conservation by Design ensures that conservation becomes institutionalized in the development process. During the planning of a development, Conservation by Design arranges the placement of infrastructure and buildings on the land so that half or more of the buildable land is set aside as open space. Without controversial downzoning, the same number of homes can be built in a less land-consumptive manner, allowing the balance of the property to be permanently protected and added to an interconnected network of community green spaces. This density-neutral approach provides fair and equitable treatment to landowners and developers. Conservation by Design can apply to a range of residential development options, from single-family homes to mixed-use communities.
Conservation by Design differs from traditional cluster developments in that it establishes high standards for both the quantity and quality of open space and places conservation planning at the beginning of the development process rather than at the end.
As of 2018, 48 Pennsylvania municipalities in 14 counties have adopted the most open space-protective versions of the Conservation by Design model ordinances developed by Natural Lands. Municipalities that have adopted these versions of the ordinances are preserving an average of 62% of the land in each new residential subdivision. Over a third of municipalities in these counties have adopted some aspects of the Conservation by Design models. In many of the resulting conservation subdivisions, the developers have donated land to the municipality at no public cost, greatly increasing local capacity to provide greenways and parks to residents.
Pennsylvania municipalities have the power to require developers to dedicate land to the municipality for park and recreation purposes. Called public dedication in the state’s Municipalities Planning Code (“MPC”), this tool is used by scores of Pennsylvania governments.
Under §503(11) of the MPC, municipalities may choose to provide a developer the option to select alternatives to public dedication. Developers may voluntarily agree to do one or more of the following instead of or in addition to public dedication:
Public dedication is essentially an impact fee—a fee imposed by government on new development to help pay for the public services that the new development will demand of government.
Many of the municipalities that have enacted public dedication and fee-in-lieu ordinances are found in Lancaster, Chester, Berks, Lehigh, Northampton, Cumberland, Dauphin, and York Counties. A selection of adopted ordinances may be found at the WeConservePA Library under the topic Public (Mandatory) Dedication and Fees-in-Lieu Ordinances. WeConservePA also publishes the guide Public Dedication of Land and Fees-in-Lieu for Parks and Recreation in Pennsylvania.
In addition to establishing a robust acquisition program, Whitemarsh Township strengthened its regulatory framework by incorporating open space requirements into its Subdivision and Land Development Ordinance. Under this ordinance, all new development is required to provide open space or recreational land, or alternatively, to contribute a fee in lieu of dedication. Dedicated property tax revenue for open space protection coupled with regulatory tools enable Whitemarsh Township to pursue a wide range of preservation projects.
Development tends to occur where public infrastructure (water lines, sewer lines, roads, and the like) is readily available. Thus, by being selective in placing such infrastructure, municipalities may reduce some development pressure on priority areas for open space protection. While this approach does not actually protect open space, it can (among other benefits) make open space less feasible for development, giving open space programs more time to assemble the resources needed to make competitive purchase offers to landowners.
When the planning process has identified and prioritized a property or properties suitable for open space acquisition, and the municipality has a grasp on its financial capacity and options, it is time to move forward with acquisition(s).
Prepare for closing. With a signed agreement, municipal representatives should act promptly to advance the project to closing:
Close and Record. Schedule a place and time for closing and convene the parties to execute the documents, wire funds, and record the deed or grant of conservation easement.
Required Notices. If a property interest is acquired pursuant to the Open Space Property Act, the municipality must forward a copy of the recorded deed or grant of conservation easement to the school district(s) in which the property is located.[29]
Conservation easements involve complexities in both their establishment and their management over the decades to follow. As such a municipality will want to ensure that it has the appropriate expertise to prevent conflicts and other problems that arise when insufficient attention is paid to the details of implementation.
This expertise can be secured through having in-house staff regularly trained in conservation easement matters. The annual three-day Pennsylvania Land Conservation Conference and various WeConservePA seminars provide extensive educational opportunities regarding conservation easements.
In many (if not most) instances, acquisition of a conservation easement is best pursued in partnership with a land trust possessing the requisite easement expertise to evaluate the property, define conservation values and objectives, and prepare the grant that will establish the conservation easement. Land trusts also possess the expertise to monitor and enforce easements effectively. Such a partnership can play out in a variety of ways, as discussed above in Forging Partnerships.
The process to acquire a conservation easement (without first acquiring title in fee) follows a broadly similar path to a fee land acquisition, but there are important distinctions. Because the value of a conservation easement depends on the nature of the restrictions imposed and the rights reserved by the landowner, the contents of a sale agreement for a conservation easement must cover a range of topics that are not relevant for fee land acquisition. For example, the agreement might address key restrictions, the form of document for granting the easement, and a preliminary easement plan to illustrate protection areas, improvements, and land uses (agriculture, forest, etc.).
The effectiveness of a conservation easement depends on the quality and design of the document used to establish it. For Pennsylvania, the Model Grant of Conservation Easement and Declaration of Covenants provides an optimal starting point, adaptable to suit virtually any combination of open space program objectives. Municipalities familiar with the Pennsylvania Agricultural Conservation Easement Purchase Program should not assume that the Department of Agriculture’s boilerplate for that program—which is tailored to the particular contours of the Agricultural Area Security Law[30]—is suitable or desirable for the municipality’s open space purposes.
In the case of a donation or bargain sale of the easement, consideration should be given to a donor/seller’s intended tax benefits, with language limiting any responsibility of the municipality for their availability or realization. If a landowner is open to an outright donation of a conservation easement, WeConservePA’s Model Conservation Easement Donation Agreement offers a useful form to address relevant considerations.
Acquisition of property under the Open Space Lands Act must be preceded by a public hearing (with notice to the landowner and overlapping local government units):
at which hearing the… local government unit concerned shall set forth the interests to be taken and their proposed open space benefits. At the public hearing persons and municipalities affected by the proposed acquisition of interests in real property shall have an opportunity to present relevant evidence.[31]
As discussed below in Selling or Terminating Open Space Property Interests, the municipality should be clear during the hearing about the specific interests to be acquired. For example, if the municipality intends to acquire the land in fee but wants to hold open the possibility of reselling the land subject to a conservation easement, each of the possible methods should be discussed publicly.
If a municipality does not explicitly express its intended purpose or use for newly acquired property, the law might speak for them—with potentially unpredictable results. Numerous areas of Pennsylvania law protect the public’s interest in public open space, and if the law is left to operate in the absence of certain municipal action, the law may place more or less restrictions on use of the land than municipal leaders might hope or assume. This ambiguity sets the stage for conflict about (1) whether land has been informally dedicated for park or other open space purposes; and (2) if informally or formally dedicated, whether a particular government action affecting the land is allowable. For example:
These abstract legal matters can quickly lead to real world conflict. For example:
To reduce risks of confusion, misunderstanding, and ill will regarding acceptable and non-acceptable uses of public open space, the local government may want to make a practice of formally dedicating property interests it intends to hold in trust for the public and, at that time, explicitly stating any reservations, exceptions, or limitations applicable to the dedication.
A formal declaration can begin by declaring the specific purpose of the dedication. For example, it might declare the purposes of:
From there, it can define reservations or clarifications. For example:
In practice, a declaration can offer solutions to a range of other practical issues. For example, a declaration might:
A formal declaration cannot be used to obviate statutory restrictions, such as the requirement of a referendum to dispose of open space acquired under the Open Space Lands Act, or the general applicability of the Donated or Dedicated Property Act to the divestment of public parks. However, if used properly, a declaration can manage expectations and inform how applicable law will apply to a particular property.
WeConservePA provides the Model Declaration of Public Trust and the Model Declaration of Public Trust for Conservation Easements to help governments accomplish their dedications.
For more information, see the guide Ensuring the Permanence of Parks and Other Public Open Space.
Chester County requires that municipalities make a declaration of public trust if they are using Chester County Open Space funds to purchase or create a park. As such, East Pikeland Township has used the Model Declaration for Public Trust multiple times. For one 115-acre property, Hidden River Park and Reserve, East Pikeland also developed and released a master plan along with a presentation (open to public comment) that outlines the purpose, plans, and different phases of the multi-faceted open space and recreational project.
The acquisition of land or conservation easement marks the beginning of the land’s service to the public in providing open space benefits. To sustain and optimize these benefits, it is prudent for a local government to develop a management plan (alternatively called a stewardship plan) for each parcel protected (or update an existing plan to bring a new parcel under it).
The Open Space Lands Act allows local governments to use up to 25% of their annual open space tax revenue to care for a municipality’s open space properties and to improve or develop them consistent with the open space benefits to be delivered. [34]
With municipal concerns often centered on protecting open space before the opportunity is lost to development, the matter of managing and taking care of protected lands can be overlooked or given inadequate attention. A local government is well advised to see that stewardship planning is completed for each parcel of land or conservation easement acquired. Planned actions might be quite similar from property to property but may also vary with the different locations, community needs, vegetation types, terrains, and other characteristics of the land. Stewardship planning can also assist a municipality in budgeting and pursuing grants.
East Bradford Township has protected approximately 1,300 acres of open space with its dedicated open space funds. The priorities of the mature open space program are shifting from acquisition to a greater focus on stewardship. Thus, East Bradford has partnered with Natural Lands to develop stewardship plans for all of the township’s protected properties: setting specific goals, delineating management strategies, programming monitoring activities, and scheduling tasks for stewarding properties in accordance with the specific conservation objectives. The plans then guide the actual stewardship work on each parcel.
North Coventry Township developed the Coventry Woods Stewardship Plan to provide a long-term strategy to protect and enhance one of the township’s most valuable natural resources. The plan outlines practical actions to improve forest health, manage invasive species, protect water resources, maintain trails, and strengthen wildlife habitat. Developed with input from township officials, community volunteers, and conservation partners, the plan establishes clear priorities to guide stewardship efforts to ensure that Coventry Woods continues to provide outstanding opportunities for recreation, environmental education, and wildlife conservation while preserving this important community resource for future generations.
Local governments can look to their tax base to fund their functions, but land trusts do not have this option. When partnering with land trusts, a local government should be aware that land trusts establish stewardship endowment funds to help them in responsibly providing for the costs associated with monitoring and maintaining land in perpetuity.
Silver Spring Township works in partnership with both Natural Lands and Lancaster Farmland Trust to protect open space. The municipality covers the various transactional costs involved in establishing conservation easements, such as title work, surveys, and appraisals. The land trusts hold the easements with the township as a beneficiary. The township provides the land trusts an endowment for each property conserved to steward the conservation easements in perpetuity, the amount varying with the size and complexity of the parcels.
Pennsylvania municipalities may use eminent domain to acquire land, but only for purposes specifically authorized by statute. For example, each municipal code includes specific authorization to condemn land for parks, playgrounds, and recreational places.[35] No municipal code explicitly authorizes municipalities to condemn land specifically for open space benefits, and the Open Space Lands Act specifically prohibits the use of eminent domain to “[carry] out the provisions of [the Act].”[36]
A municipality may realize non-recreational open space benefits when it condemns land for a legitimate recreational purpose.[37] Trouble arises when recreation is used as a pretext, screen, or rationalization for a condemnation that is actually intended primarily for non-recreational open space benefits. Court decisions illustrate how to distinguish a valid park purpose from an impermissible pretext.
In the 2007 case of Middletown Twp. v. Lands of Stone, the Pennsylvania Supreme Court blocked the municipality’s attempt to overextend their general condemnation authority.[38] The municipality had sought to condemn a property under its authority to acquire land for public recreation. However, the Court held that the “real or fundamental” purpose for the condemnation controls. The record from trial revealed a total absence of planning for recreation on the site, but a volume of evidence—including public statements of municipal officials—that its true purpose was to block a planned residential development. The Court observed that the municipality’s asserted recreational purpose appeared to be mere pretext—a post hoc rationalization to evade the condemnation prohibition in the Open Space Lands Act. The Court explained that the stated purpose for a municipal taking must be supported by “substantial and rational proof by way of an intelligent plan that demonstrates informed judgment to prove that an authorized public purposes is the true goal of the taking.”[39]
In 2025, the Commonwealth Court reached an opposite outcome in the matter of In re Condemnation of Prop in Rem Identified As Tax Parcel No. 62-00-02014-00-3 in the Twp. Of Upper Salford Montgomery County.[40] The township, in its declaration of taking, listed purposes of providing parks and recreational opportunities, as well as “providing open space” and “preservation of a unique and valuable natural resource and natural area.” The objecting landowners asserted that under Lands of Stone, the taking was illegal because open space preservation was a stated objective of the taking, and the land condemned included expanses of natural land which would remain largely unimproved. The Commonwealth Court rejected this argument, holding that recreation “can occur on open and unimproved land,” and that references to “open space” in the declaration in no way undermined substantial evidence that the municipality’s fundamental purpose for the entire taking was to expand recreational opportunities. It explained that “Land conservation is inevitable in any passive recreational use…”[41]
Notwithstanding the refreshing clarity of the Upper Salford decision, where a municipal government is weighing condemnation as a tool to acquire land for recreation, care is warranted:
Condemnation is a conventional tool for acquiring land from an unwilling landowner but can also be of use in certain situations when the landowner is ready and willing to sell their land.
In what practitioners refer to as “friendly condemnation,” a willing landowner may cooperate with the condemning authority, even stipulating the amount of “damages” (compensation) to be paid to the landowner.[43] Transferring the property this way offers a number of advantages for both the municipality and the seller. Benefits include:
A municipality may use funds from its voter-authorized open space tax to:
Expenditures on the last item may never exceed 25% of open space tax revenues. The specific amount available for spending in a given year dependent on which alternative provided by the Act is used. The municipality may choose one of two pathways for using funds to “develop, improve, design, engineer, and maintain” their open space properties (collectively, “improvement and maintenance”): [47]
Examples of expenditures associated with the item “develop, improve, design, engineer, and maintain property acquired for open space benefits” could include:
Examples of inappropriate expenditures include:
If municipal property is used for parks or other recreation, or if the land provides other open space benefits, its disposition and use are constrained by rules that may not apply to other properties held by the municipality. This handbook addresses a subset of these rules—specifically those applicable to open space acquired pursuant to the Open Space Lands Act.
WeConservePA has produced extensive guidance regarding the rules for changing the use or disposing of public parks and other public open space. For a comprehensive review of applicable laws and doctrines, see the guide Ensuring the Permanence of Parks and Other Public Open Space.
Before addressing those rules, there is the question of whether property interests have been acquired under the Open Space Lands Act. There are at least three ways that an acquisition might be deemed, as a legal matter, to have been made pursuant to the Act:
The Open Space Lands Act is broadly permissive regarding uses of open space land, with general qualitative limitations. The Act applies to land acquired for “open space uses” which is defined to mean any activity “not inconsistent with the achievement of open space benefits.”[50]
“Open Space benefits” are defined to mean: “benefits to the citizens of the Commonwealth and its local government units which result from the preservation or restriction of the use of selected predominantly undeveloped open spaces or areas, including but not limited to:
The construction of the Act’s language suggests that a wide variety of uses may be permitted, so long as they do not contradict achievement of the publicly stated open space benefits of the particular property interest. It further suggests that the “predominantly undeveloped” qualifier affects all open space property interests acquired under the Act. While courts have yet to expound on specific parameters, it is reasonable to infer from the Act’s language that:
Because the “open space benefits” advanced by the Act are public in nature,[52] uses that advance a private or personal interest are more likely problematic as being “inconsistent” with them.[53] Access to land acquired for recreational use should generally not be unreasonably restricted for use by a private organization or an identifiable group of residents. In other instances, granting rights of private use may be wholly consistent with the public benefits of the acquisition. For example, where land was acquired in part for preservation of a historic structure and in part for watershed protection, the leasing of the structure’s interior to an individual or organization may be permissible and consistent with the intended public benefits.
Public land uses might be disallowed if inconsistent with public open space benefits. For example, installation of a board fence may be consistent with a wide range of open space benefits, such as parks and watershed protection. But if scenic enjoyment was an intended public benefit of acquiring an open space interest, installation of a particularly tall board fence that obstructs the view of a key scenic landscape might be found impermissible pursuant to the Act.
The presence or construction of buildings or other improvements is not flatly prohibited, so long as they do not unreasonably defy the meaning of “predominantly undeveloped,” or interfere with the intended open space benefits. For example, acquisition of an open space site that contains historically significant buildings is clearly within the meaning of the Act, but acquisition of a historically designated building without significant open space attached to it is likely not within the meaning of the Act. Similarly, while the Act clearly anticipates parks and recreation, playgrounds and open-air athletic facilities are more likely to be found consistent with the “predominantly undeveloped” qualification than an indoor recreation center.[54]
Before permitting a particular use or improvement of government-owned open space property, a local government should review the open space benefits for which the property was acquired and avoid or prohibit uses that would undermine them.
With respect to conservation easements and deed restrictions held by the municipality, the conservation objectives and covenants set forth in the granting document will generally be conclusive as to what uses may or may not be permitted on the land.
This section addresses the Open Space Lands Act’s rules for termination or otherwise altering open space property interests. Other rules may additionally apply. This is most likely if the municipality has made the open space available to the public as a park. See the WeConservePA guide Ensuring the Permanence of Parks and Other Public Open Space for more information.
The Open Space Lands Act allows a degree of flexibility for elected municipal officials to respond to changing conditions and popular demand.
For all open space property interests acquired pursuant to the Open Space Lands Act, the Act requires public disclosure of the interest to be acquired at a public hearing prior to acquisition,[55] and sale or termination of the interest is prohibited without prior approval from the electorate in the form of a ballot question.[56] This requirement applies to owned lands, conservation easements, and any other property interest acquired under the Act, regardless of how the acquisition was funded.
A potential complication emerges when a municipality acquires land in fee under the Act and subsequently recognizes that it would be more advantageous to resell the property subject to a conservation easement.
On the one hand, the Act plainly permits buy-restrict-sell as a planned-for open space protection method.[57] So long as the conservation easement protects the intended open space benefits, it can be argued that this transaction is clearly within the spirit and meaning of the Act, and that the municipality need not go to through the time and expense of a ballot question to approve the sale.
On the other hand, if the original intention (reflected in the public record) was to acquire land in fee, it might be argued that selling the fee interest, even subject to a conservation easement, is the sale of an “open space property interest”—therefore requiring voter approval. This contention is supported by the Act’s emphasis on prior planning and public disclosure. If the municipality announced an intention to acquire the land in fee, absent any indication of the possibility of resale subject to restrictions, the fee ownership itself can be viewed as an “open space property interest” within the meaning of the Act, and its sale may be susceptible to a legal challenge if not approved by voters.
To avoid disputes regarding what type of open space property interest the municipality must retain over time, the municipality may craft a resolution authorizing an acquisition pursuant to the Act that explicitly reserves flexibility. For example:
RESOLVED, that [municipality] reserves the option, at the discretion of the Board of Supervisors, to resell the Property subject to a conservation easement or other use restrictions designed to ensure the protection of the open space benefits identified herein.
The possibility of moving from fee ownership to holding a conservation easement should also be disclosed at the public hearing regarding the acquisition and reflected in the record.
The Act provides specifically for scenarios where the termination of conservation easements and deed restrictions is “essential for the orderly development of an area,” by the following procedure:
This framework functions as a release valve in situations where municipal development goals conflict with previously acquired open space interests. It ensures public approval, prevents the possibility of a municipal windfall from the disposition, and ensures a transparent, public process if a release is pursued.
The Open Space Lands Act provides that a local government’s ownership of an open space property interest does not prevent another government entity or public utility from acquiring a right of way for access, or for underground gas storage, whether by purchase, lease, or eminent domain.[60] However:
For acquisitions of rights of way by non-utility entities on land subject to a conservation easement (or other restriction) under the Act, the Pennsylvania Supreme Court has interpreted the Act to vest the holder of an open space property interest with broad veto power. In the case Ephrata Area School District v. County of Lancaster,[61] a school district sought to acquire a right-of-way from the owner of land encumbered by a conservation easement held by the county government under the Open Space Lands Act. The district requested the County’s approval, which the County denied. The school district appealed, arguing that it did not need the County’s approval. The Supreme Court ultimately held that the plain meaning of the Open Space Lands Act dictates that the acquisition could not proceed without County approval.[62]
There is no indication in the Act, or in any court’s interpretation, that the conveyance of a public right of way constitutes sale or termination of an open space property interest that would necessitate a public referendum. Instead, the Act’s theme of public accountability is apparent in (1) the permission extending only to public projects, and (2) the requirement for public hearings before such projects may proceed.
The 1996 amendment (Act 153) to the Open Space Lands Act provided explicit authorization for voter-approved open space taxes, but did not lay out clear rules for if, how, and when these taxes could be repealed or adjusted. As a result, a variety of repeal and adjustment practices proliferated. For example, some municipalities inserted automatic expiration clauses in their tax-authorizing ballot questions. Act 115 of 2013 brought clarity.
Act 115 amended the Open Space Lands Act to specify that, once imposed, the voter-authorized tax may not be repealed “any sooner than five years after the imposition,” or “when any indebtedness incurred for payment of the property or properties acquired has been repaid, whichever is later.” Even then, an open space tax imposed by voter approval may not be repealed except in the same manner it was established—by voter approval. Repeal may only occur following voter rejection of a ballot question phrased affirmatively as follows:
“Do you favor the continued imposition of the (describe tax in millage or earned income tax rate) by (local government unit) to be used to (purpose)?”
Whether the repeal effort fails or succeeds, no ballot question to repeal or reinstate the tax may occur for an additional five years.[63]
The specificity of the Act’s provision for a ballot question on the matter of repeal calls into question the permissibility of placing an automatic expiration clause in a ballot question for the initial approval of an open space tax. Proponents of the practice contend that an expiration clause meets the spirit of the Act’s voter approval rules and can bring popular support within reach where an open-ended tax may not be saleable. The practice has not been tested in court.
The 2013 amendment clarified another matter: that a voter-authorized open space tax rate is fixed; once approved by voters, it may not be unilaterally adjusted by municipal leaders.
Some have pointed to the Act’s language authorizing an open space tax “not exceeding” the voter-authorized level as indication that a municipality may unilaterally reduce the tax amount—so long as it is not eliminated. This reading is inconsistent with clearly expressed legislative intent.
First, since the introduction of the local taxing option in 2006, Section 7.1(a.3) has provided that the authorizing ordinance must “first provide for a referendum on the question of the imposition at a specific rate of the additional tax to be imposed . . ." The 2013 amendment made things even clearer, adding at Section 7.1(a.4) that a repeal referendum must specify the voter-authorized tax rate, and that that if a repeal referendum fails, “the open space tax shall continue to be imposed at the rate described in the question.” [64]
Seeing the voter-authorized rate as a mere not-to-exceed cap renders the referenced passages and the resulting administration of the Act as nonsensical. For example, why isn’t the electorate asked instead to authorize their local government to impose a tax “up to” the specified amount instead of the specific amount? How can a tax “continue to be imposed” at the specified rate if local government has unilaterally lowered that rate?
When voters—through their General Assembly-authorized referendum—give their municipal leaders a mandate to advance open space preservation with voter-authorized funding, their leaders are bound to dutifully respect this democratic imperative unless and until voters vote to repeal this directive.
The Open Space Lands Act provides local governments an option for incentivizing landowners to conserve their land. If the local municipality, the county, and the school district in which the property is located are all in agreement, they may freeze the millage rate for real estate taxes for real property:
< >for which the open space property interest (for example, conservation easement) has been acquired by a local government unit in accordance with the Open Space Lands Act;that is subject to an easement acquired in accordance with the “Agricultural Area Security Law; orfrom which transferrable development rights have been transferred and retired by a local government unit without their development potential having occurred on other lands.[65]
[1] Act of January 19, 1968, P.L. 992, No. 442, 32 P.S. § 5001 et seq.
[2] Act of December 18, 1996, P.L.994, No.153.
[3] 32 P.S. § 5001.
[4] 332 P.S. § 5002(1).
[5] Id.
[6] Borough Code § 2702.
[7] First Class Township Code § XXX (a).
[8] Second Class Township Code § 2201.
[9] Matthew E. Murray v. Trace Slinkerd, 162 M.C.L.R. 457 (Pa. Ct. Com. Pl. Montgomery Cnty. 2025) (Saltz, J.) (published in the Montgomery County Law Reporter). Judge Rules Against Upper Pottsgrove Open-Space ‘Grab’,” Pottstown Mercury (Oct. 19, 2024), https://www.pottsmerc.com/2024/10/19/judge-rules-against-upper-pottsgrove-open-space-grab/.
[10] 32 P.S. § 5003.
[11] 32 P.S. § 5007.2(a).
[12] 53 P.S. § 6924.101 et seq.
[13] 53 P.S. § 6924.311.
[14] A municipality may not issue bonds that exceed 250% of its annual revenue over the three previous years.
[15] Act 177 of 1996. Procedural instructions for voter approval of “electoral debt” are provided in Sections 8041-8049.
[16] For more information on bonding, refer to page 18-20 of Public Finance for Open Space: A Guide for Pennsylvania’s Municipalities.
[17] See “Permissible Uses of Open Space Tax Dollars” below for detail.
[18] 32 P.S. § 5007.3.
[19] Act 69 of 1933, § 1503(c)(17).
[20] 32 P.S. § 5011.1.
[21] This Fund receives its monies from state cigarette taxes and the state’s Environmental Stewardship Fund (which in turn is supported by fees on waste dumped in Pennsylvania landfills).
[22] 65 Pa.C.S. §§ 701-716
[23] 32 P.S. § 5007.2(a).
[24] 53 P.S. §§ 10101 et seq.
[25] 32 P.S. § 5005(c)(1).
[26] 32 P.S. § 5002(2).
[27] For more information on transferrable development rights, see the guide Transfer of Development Rights. This method still requires the negotiation and recordation of an enforceable restriction (often a conservation easement) on future development of the property from which transferable development rights are acquired.
[28] The transfer of development rights zoning tool has delivered scattered success. Effective implementation has proven difficult in Pennsylvania.
[29] 32 P.S. § 5007.2(c).
[30] P.L. 128, No. 43.
[31] 32 P.S. § 5006.
[32] 53 P.S. §§ 3381-3386.
[33] 32 P.S. § 5002(1).
[34] 32 P.S. § 5007.1(4).
[35] First-Class Townships, 53 P.S. § 56901(a)(4); Second-Class Townships, 53 P.S. § 67201; Boroughs, 8 Pa.C.S. § 1501(5); Third-Class Cities, 11 Pa.C.S. § 12801(a)(5); Second-Class Cities 53 P.S. § 23141; First-Class Cities, 53 P.S. § 16523.
[36] 32 P.S. § 5008(b).
[37] “The fact that the Open Space Lands Act exempts second-class townships from eminent domain powers to further the purposes enumerated under the [Open Space Lands Act] simply means that second-class townships have no authority to invoke the [Open Space Lands Act] to condemn property. This has no effect on the ability of a second-class township to take for recreational purposes under the Township Code.” Middletown Twp. v. Lands of Stone, 939 A.2d 331 (Pa Supreme Ct. 2007) (internal citations omitted).
[38] Middletown Twp. v. Lands of Stone, 939 A.2d 331 (Pa Supreme Ct. 2007) (holding that the condemning municipality’s true purpose for condemning farmland was to preserve it as open space, notwithstanding the township’s claim that the acquisition was for recreational purposes under the Second Class Township Code); see also In re Condemnation Proceedings of Montgomery Twp. 56 A.3d 710 (Pa. Cmmw. Ct. 2012).
[39] Id. at 340 (italics added for emphasis).
[40] In re Condemnation of Prop. In Rem Identified As Tax Parcel No. 62-00-02014-00-3 in the Twp. Of Upper Salford Montgomery Cnty., 331 A.3d 116 (Commw. Ct. 2025).
[41] Id. at 129.
[42] 26 PA Cons Stat § 302 (2024).
[43] 26 PA.C.S. § 501.
[44] Internal Revenue Code §§ 1031, 1033; 26 CFR §§ 1.1031(a)-(k), 1.1033(a)-(h).
[45] More precisely, the dedicated tax revenue can be used for the purpose of delivering open space benefits per the Open Space Lands Act or under the provisions of the act of June 30, 1981 (P.L.128, No.43), known as the “Agricultural Area Security Law.”
[46] This list is paraphrased from Section 7.1 of the Open Space Lands Act, 32 P.S. § 5007.1. The emphasized text is quoted directly from the statute since it is a frequent item of discussion.
[47] Expenditures on the last item are permissible only after the government has paid outstanding acquisition costs in full and provided for payment of all debt service for prior open space acquisitions. 32 P.S. § 5007.1(a)(4), (a.1-.2).
[48] Open space tax revenues can properly support a staff person or contractor’s activities that are reasonably characterized as one or more of the uses permitted under the act. It is likely impermissible to pay the full compensation from these revenues of a staff person or contractor whose scope of work includes other activities.
[49] See, e.g., Matthew E. Murray v. Trace Slinkerd, 162 M.C.L.R. 457 (Pa. Ct. Com. Pl. Montgomery Cnty. 2025) (Saltz, J.) (published in the Montgomery County Law Reporter).
[50] 32 P.S. § 5002(4).
[51] 32 P.S. § 5002(1).
[52] 32 P.S. § 5001 (“The acquisition . . . of property interests authorized by this act are hereby declared to be for the public benefit . . .”); 32 P.S. § 5002(1) (defining “open space benefits” to mean “benefits to the citizens of the Commonwealth and its local government units”).
[53] 32 P.S. § 5002(4) (Defining “open space uses” to mean “uses not inconsistent with the achievement of open space benefits”).
[54] See Northampton Twp v. Parsons, 2011 Pa. Commw. Unpub. LEXIS 549 (2011). While not directly addressing the question of whether an indoor recreation facility can ever be consistent with “predominantly undeveloped” land, one issue in this case was whether an indoor recreation facility was authorized by a reference to “recreation” as a use of land conserved through funding from a county open space program. The Commonwealth Court concluded that the facility was in plain disregard of the clear intention of restrictive covenants to retain the open space character of the property.
[55] 32 P.S. § 5006 (“Interests in real property to be acquired pursuant to the provisions of this act shall be designated by the . . . local government unit . . . After such designation, the said interests shall not be acquired until a public hearing is held . . . at which hearing the . . . local government unit concerned shall set forth the interests to be taken and their proposed open space benefits.”) (italics added for emphasis).
[56] 32 P.S. § 5010(b) (“Before any open space property interests are disposed of by a local government unit, the officials of the local government unit must first put the question to its electorate at the time and place of any general, municipal or primary election to determine if a majority of the voters participating in said election assent to the proposed disposition of the specific open space property interests.”).
[57] 32 P.S. § 5005(c)(1) (“A local government unit may acquire any interest in real property situate within its boundaries by purchase, contract, condemnation, gift, devise or otherwise, for [purposes including] limiting the use of real property to achieve open space benefits by reselling real property acquired in fee simple, subject to restrictive covenants or easements limiting the use thereof for the purposes [including all purposes listed in this subsection].”)
[58] This description tracks the Act’s wording; however, technically, the landowner would, in fact, purchase release of the restriction, not the restriction itself.
[59] 32 P.S. § 5010(b).
[60] 32 P.S. § 5011(a).
[61] Ephrata Area School District v. County of Lancaster, 938 A.2d 264 (Pa. 2007).
[62] “Where . . . a body other than a public utility seeks a right-of-way over property subject to an open space property interest vested in a local government unit, the entity seeking the right-of-way can secure it only if, after a public hearing, the governmental unit approves the right-of-way.” The Court also held that the conservation easement itself required the parties to obtain the county’s approval, though that finding was independent of the Court’s holding regarding the meaning of the Open Space Land Act’s provision.
[63] 32 P.S. § 5007.1(a.4).
[64] A ballot question for repeal of an open space tax must be stated in the affirmative, as follows: “Do you favor the continued imposition of the (describe tax in millage or earned income tax rate) by (local government unit) to be used to (purpose)?” 32 P.S. § 5007.1(a.4).
[65] 32 P.S. § 5007.1(b).
