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McCormick Farm is in Silver Spring Township.

Cumberland Valley School District says it will file to pull out of its controversial eminent domain case over the McCormick Farm in Silver Spring Township.

The district’s decision to quit the case follows the passage of Pennsylvania House Bill 2468, which was signed into law as Act 45 on Sunday by Gov. Tom Wolf. The law creates a higher hurdle for eminent domain cases involving land with a preservation easement, and is retroactive to all cases filed after Dec. 31, 2017.

“Cumberland Valley School District will be filing a petition with the Cumberland County Court of Common Pleas seeking termination of its Declaration of Taking, which was filed March 6, 2018,” the school district said in a public statement issued Thursday.

Even without the additional challenge of Act 45, the school district faced potentially lengthy litigation with Natural Lands, the conservation group that holds an easement over the farm, preventing development beyond its historic agricultural use.

Although the farm was for sale by its deed holder, the Lee family, Cumberland Valley School District still needed to condemn the property to void Natural Lands’ easement and gain the ability to develop the site into school facilities.

In a statement, Natural Lands President Molly Morrison said the foundation received notice Wednesday afternoon that the school district intended to petition the court to terminate the case. Natural Lands is reviewing the petition, Morrison said.

Act 45

With Act 45 in place, voiding the case would seem to be the only viable option for the school district.

The law requires 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.”

This would put the school district in the position of having to prove to the court that taking the McCormick Farm was the only option to address the district’s growing enrollment and need for new space.

This would be a significantly different legal case than the one the district was making in its litigation with Natural Lands, which stressed the district’s broad legal powers of discretion with regard to eminent domain criteria, putting the burden on Natural Lands to prove the filing was made in bad faith.

The other option would be for the school district to challenge the state’s ability to enact legislation retroactively. However, all of these scenarios would almost certainly result in lengthy proceedings and multiple appeals.

Growth problem

This would obviate the district’s original reasoning for taking the farm — that it direly needed the space to address rapid growth.

The McCormick parcel would’ve housed a 1,400-student middle school, roughly identical to the district’s Mountain View Middle School being built on Bali Hai Road. That school is projected to be full within two years of opening, the district said.

But given the legal circumstances, it’s doubtful that the McCormick land claim would even be out of court within two years, let alone a school being ready for students.

“While the district questions the constitutionality of the provision of Act 45 regarding retroactivity, litigating this issue would result in protracted timelines and increased costs, which will not help in alleviating our three- to five-year enrollment needs,” the district said in its statement Thursday. “To that end, the Board of School Directors acknowledges its fiduciary responsibility to the taxpayers and recognizes that seeking termination of the condemnation proceedings is the most prudent course of action.”

Opposition

The Cumberland County Commissioners, as well as several state agencies, were stridently opposed to the school district’s actions.

While the McCormick Farm’s conservation easement was privately held by Natural Lands, the county- and state-sponsored farmland preservation program holds dozens of easements on roughly 18,000 acres of land.

A legal precedent, or at least the perception, that conservation use could be overridden by school use stood to seriously damage the publicly backed farm preservation efforts, the county argued.

HB 2468 was sponsored by representatives from Chester and Montgomery counties, where a case similar to the McCormick Farm controversy has played out. Lower Merion School District is attempting to condemn portions of the historic Stoneleigh Gardens, which are also preserved by an easement held by Natural Lands.

In his legislative note, Rep. Warren Kampf (R-Chester County) — HB 2468’s prime sponsor — said 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.”

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Email Zack at zhoopes@cumberlink.com.

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