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An eminent domain reform bill that would significantly impact Cumberland Valley School District’s condemnation case involving the McCormick Farm is moving quickly through the state Legislature.

House Bill 2468 saw its first vote in the state Senate Friday morning after passing the House on Tuesday with strong support, 179-to-18.

The bill would require that any entity exercising eminent domain powers over a property subject to a conservation easement — public or private — receive prior approval from the “orphan’s court of the county in which the land is located.”

The court shall allow the condemnation to proceed, according to the language of the bill, “only if the court determines there is no reasonable and prudent alternative to the utilization of the land subject to a conservation easement.”

The Senate voted 38-to-11 on Friday in favor of amending the bill to exclude “commonwealth agencies” from the new eminent domain requirement. This exclusion does not encompass any other “political subdivision, authority, public utility, or other body having or exercising powers of eminent domain.”

The change was made to avoid redundancy, since most state agencies that exercise eminent domain — such as the Department of General Services and PennDOT — are already bound to court approval processes similar to that in the bill.

“The change was made to avoid duplicate court processes. The intent of the bill remains the same,” said Erin Marsicano, legislative director for Sen. Mike Regan.

Although Regan initially voted in favor on third consideration Friday evening, Marsicano said this was in error. The vote was reconsidered at 37-to-12, as Regan ultimately voted against.

“He doesn’t feel that the state needs to be telling these school districts how to operate,” Marsicano said. “He does not wish to take sides on the Cumberland Valley issue, particularly through this legislation. He didn’t want to be big brother coming in with state legislation in the middle of the process.”

CV’s eminent domain case

The bill would apply to any declaration of taking filed after Dec. 31, 2017 — meaning that Cumberland Valley School District officials would need to go back through Cumberland County’s civil court system and obtain the approval outlined in the bill before proceeding further with their condemnation attempt.

Further, this approval would put the burden of proof on the district to articulate the process by which it determined that no alternatives are available other than the McCormick Farm for the construction of a new school campus.

That selection process, and the lack of detail surrounding it, have been the subject of debate.

The school district is in the midst of litigation over it’s taking of the farm, a historic tract that rests on the north side of Route 11, just west of Hogestown in Silver Spring Township.

While the land is for sale by the estate of the farm’s last owner, the school district cannot simply buy the land and turn it into school facilities. Natural Lands, an environmental conservation group, holds an easement over the farm. The easement was granted to the group in 1983 by the heirs of the McCormick family, transferring rights to further development to the nonprofit foundation, thus restricting the farm’s owner to only using the land for agricultural purposes.

The only way to take this easement, and thus obtain the rights to develop the land into a school, is condemnation through the courts. Natural Lands has challenged the school district’s case, with the land trust and the school district submitting multiple briefs to the court. Oral arguments are scheduled for Aug. 6 in the Cumberland County Court of Common Pleas.

Two school districts

HB 2468 appears to be specifically tailored to adjudicating cases like the McCormick Farm.

In his legislative note, Rep. Warren Kampf (R-Chester County) — the bill’s prime sponsor — states that “two school districts in the commonwealth have decided to use eminent domain to condemn privately owned land permanently preserved by conservation easements held by local land trusts, over the objections of many residents of the communities.”

The bill is also co-sponsored by two representatives from Montgomery County, which is experiencing a similar issue with regard to Lower Merion School District’s attempt to exercise eminent domain at Stoneleigh Gardens, a public botanical center that is preserved by a private easement also held by Natural Lands.

The language of HB 2468 gives all preserved lands similar safeguards to the ones used on farms that are enrolled in the state’s Agricultural Security Area program.

Farms that are part of the ASA have special protections from local regulations that would restrict agricultural use, intended as a safeguard against new developments clashing with established farms.

ASA properties also cannot be condemned unless the taking is approved by the State Agricultural Lands Condemnation Approval Board. This requires the condemning body to affirmatively prove that no other land is available for a project of immediate public need, similar to the language being introduced for the court hearings outlined in HB 2468.

The McCormick Farm is not part of the ASA program, although most of the preserved farms in Cumberland County are. Most easements in the area are held by the county’s Agricultural Land Preservation Board, which is funded by the county and state as a public agency.

Altered approach

The requirements in HB 2468 would force Cumberland Valley School District to alter its legal approach. The district’s court filings rely heavily on the notion that eminent domain, and the discretion to exercise it, are broad powers.

In its most recent brief, the district cites prior case law in asserting that “the board is not required to follow any set criteria in choosing a school site,” and that “a trial court has no power to substitute its discretion for that of the condemnor, nor to correct mistakes in judgment. It is presumed that the officials have performed their duties in good faith.”

The powers created in HB 2468 would obviate such claims, placing on the condemnor the burden to prove that no other suitable sites besides the preserved property are available.

The bill has gained bipartisan support. However, Rep. Greg Rothman (R-Camp Hill) recused himself from the vote. Rothman’s realty firm, RSR Realtors, is the listing agent for the McCormick property.

Rep. Stephen Bloom (R-Carlisle) and Rep. Sheryl Delozier (R-New Cumberland) both voted against the bill in the initial House vote Tuesday. Bloom argued that special protections against eminent domain granted to private easements would simply put more eminent domain pressure on those whose properties have not been offered such easements by conservation groups.

“I am concerned that the proposed legislation will elevate certain favored landowners’ rights above those of the vast majority of landowners who own unrestricted properties, and that if this bill is enacted, more private unrestricted residential and commercial property will be taken by eminent domain, because of these new special legal privileges being given only to landowners who have entered into voluntary conservation easements,” Bloom said in an email.

Delozier later voted to approve the bill in a concur vote in the House Friday.

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Reporter for The Sentinel.