The emerging battle over the sanctity of farmland preservation easements will likely be fought on two fronts, activists say — the court of law and the court of public opinion.
On March 5, the Cumberland Valley School Board formally filed a declaration of taking in the Cumberland County Court of Common Pleas, expressing the board’s intent to exercise eminent domain over the property known as the McCormick Farm in Silver Spring Township and construct new school facilities on the parcel.
On Thursday night, roughly 100 local residents gathered at the New Kingstown Volunteer Fire Company to discuss how to resist the school district’s actions.
“This is going to be won in two courts, the court of public opinion and the court of law,” meeting organizer Laura Brown said. “There’s not much we can do about the legal aspect, but we can spread the word.”
Representatives from Natural Lands Trust also attended Thursday’s meeting. Natural Lands Trust is a nonprofit environmental preservation group that holds an easement over the McCormick property.
“We have retained legal counsel and are going to do everything we can to keep [the taking] from happening,” said Oliver Bass, vice president for communications at Natural Lands Trust.
In 1983, the heirs of the McCormick family granted Natural Lands Trust an easement over the historic farmland, whose formal address is 31 Old Willow Mill Road in Silver Spring Township.
That easement restricts the farm’s owner to using the land in a way that will allow it to remain “open space for the scenic enjoyment of the general public and as a memorial to Thomas McCormick and the McCormick family,” according to the deed.
Thomas McCormick settled the land in 1745. One of his descendants, Cyrus, would invent the famous grain reaper that accelerated agricultural development worldwide.
An easement grants certain usage rights on a property to another party, and remains in effect unless both the holder of the deed and the holders of any easements agree otherwise.
“A conservation easement is a landowner who agrees to permanently protect their property and a land trust or board who agrees to the moral responsibility of making sure that land stays preserved and protected,” said Jack Stefferud, senior director of land protection at Natural Lands Trust.
The property can be bought and sold, but the rights granted by the easement remain with a third party, restricting any new owners’ use.
“They no longer have the right to develop the property. That right is owned by the land trust or conservancy or agricultural board or whomever is protecting the land,” Stefferud said.
The McCormick farm has changed hands and is in the estate of Ui Ung Lee, an investor who had leased the site to a tenant farmer.
This is the crux of the issue for Cumberland Valley School District. Simply buying the farm, which is currently for sale by Lee’s heirs, would not allow the district to build upon it. The only way to nullify the rights held by Natural Lands Trust is via condemnation.
Natural Lands Trust and the Lee estate were served with notices of the school district’s action on March 21.
“We’re now in a 30-day window to file a response, which is what our legal folks are doing now,” Bass said.
For Natural Lands Trust, the matter is simple: While the school district may believe its proposed public use for the McCormick farm outweighs its current use as an environmental preserve, the land trust believes that the public benefit of open space is just as valid.
Bass said the farm has two uncommon soils that are listed as being of “statewide concern” by Pennsylvania’s environmental agencies. The easement also protects stream heads along the Conodoguinet Creek with forested preserves.
“That saves you money on providing clean water, which is a huge public interest,” Bass said.
The ability of a government entity to condemn property through the courts and take the property for public use — the process known as eminent domain — has been a tricky issue in the Anglophone legal system for centuries, and one that is still not fully resolved.
Eminent domain cases in the United States typically must pass the test of the Fifth Amendment, the critical clause being “nor shall private property be taken for public use, without just compensation.”
The phrase “public use” is a matter of interpretation, although the most common eminent domain cases are those in which a vital piece of public infrastructure has no other options but to pass through private property.
As stated in in the Fifth Amendment, the court that grants the condemnation will also adjudicate a fair value of compensation to be given to the owner whose property is being taken for public purposes. This includes the value of any portions of any easements, including conservation easements.
“We have had some land condemned before, but these were little tiny bits of land where a road was being widened or a pipeline was coming through, and the court would agree on what PennDOT or the utility company needed to compensate us for crossing our easement,” Stefferud said. “This is the first time in our 65-year history we’ve had anyone try to take an entire property, and we’re obviously not happy about that.”
At Thursday’s meeting, many residents questioned where the line of legitimate “public use” could be drawn by the court.
Many questioned if the school board had looked at other locations, although they may be farther away from Cumberland Valley School District’s main campus, which the McCormick farm is only a short distance from. But does the entitlement to public use also entail convenience, residents asked.
Others questioned whether public use extended to ancillary school facilities, such as sports fields, as opposed to classrooms.
Cumberland Valley School District representatives did not respond to The Sentinel as of press time.
The school district’s court filing is somewhat vague on the nature of the intended use for the 108-acre farm. The Declaration of Taking states that the condemnation is “specifically for the purpose of utilizing said land in conjunction with the construction of school buildings, related facilities and necessary improvements.”
The school board’s resolution to proceed with condemnation, passed in January, was slightly more specific, resolving that “it is necessary that the school district acquire and secure certain lands in Silver Spring Township for the purposes of constructing a new middle school, access drives, parking lots, and related facilities, together with other improvements.”
The definition of public use has been interpreted widely in other cases around the county.
In 2005, the U.S. Supreme Court decided in Kelo v. City of New London that a Connecticut town had the power to take property to further a redevelopment plan, even though it was being built by a private company, arguing that the increased tax base from the economic development project was a public good.
The case caused several states, as well as the federal government, to create statutes limiting the use of eminent domain, having seen Kelo as an overreach.
Courts have also found that eminent domain can be applied to property that is not physical. In a famous 1982 case, the City of Oakland filed condemnation proceedings against the Raiders football franchise, claiming a public use in preventing the team from moving to Los Angeles.
The case failed on the grounds of undue commerce restriction, but the assertion that eminent domain is applicable to non-physical property remains.
For those at Thursday’s meeting, little could be done regarding the legal proceedings themselves. Rather, residents resolved to pressure the school board’s elected membership to change their stance, and inform the public.
Attendees included Cumberland Valley students.
“I think most students aren’t fully aware what the issue is, and the district hasn’t really communicated much to us, which I don’t agree with,” said Madison Whitcomb, a senior at CV High School.
Several farmers were also in attendance. Many were worried that the ability of the school district to nullify an easement would set a bad precedent for their farms.
Others expressed resentment over the school district pre-emptively taking farmland that is commercially viable.
“The school board is out there telling folks that the farm wouldn’t sell anyway, but we could make it work,” said farmer Tom Moyer, who had discussed buying the farm with his business partner Gary Nailor. “We’re the two youngest farmers left in Silver Spring Township, to my knowledge, but at $12 grand an acre, we could make it work.”
The asking price for the farm is $1.5 million, which comes out to between $12,000 and $13,000 per acre. Because the conservation easement eliminates the potential value of future commercial development, farms with such easements sell for comparatively less.
Some attendees questioned whether the school board fully understood that it would not be able to acquire the farm for the $1.5 million list price, but would have to compensate Natural Lands Trust for the value of the easement as well.
Such development rights along Route 11 would likely be determined by the court to command a premium, a financial pitfall for a district that is heading into its fifth consecutive year of tax increases.
Emal Zack at email@example.com.