UPPER POTTSGROVE — The public meeting to discuss the township’s controversial proposal to alter the wording in its zoning regulations did not take place on Monday as originally planned.
The wording covered several different items, including a statement that said 'a municipal use should be allowed in any zoning district' and would have allowed a 'municipal use' on protected open space property. While the township's stance is that the permission already exists in the current wording, many viewed the timing of this proposed change as an effort to strengthen the legal basis for the board's plan to construct a new township building on the Smola Farm off Evans and Moyer Road.
That plan is being opposed by a lawsuit filed by two residents, Matt Murray and Nathaniel Guest. Recently, on March 8, Court of Common Pleas Judge Stephen Tolliver rejected a second request for an emergency injunction to halt the township's announced intention of commencing construction on the project.
“The second injunction filed against us cost us, I’m just guessing, like I said I don’t have the numbers in front of me, cost us about $12,000. That was a waste of money,” Don Read expressed at Monday’s commissioners meeting.
Upper Pottsgrove acquired the 36.5-acre Smola farm in 2008 for $450,000 as protected open space. The plan to construct a township municipal complex on part of it has generated significant public opposition, including from the two elected state officials representing Upper Pottsgrove, state Sen Tracy Pennycuick, R-24th Dist., and state Rep. Donna Scheuren, R-147th dist., both of whom recently voiced their opposition.
The delay of Monday night’s scheduled meeting was announced on the township website a few days before the Monday night’s meeting. At the beginning of the meeting, Township Solicitor Eric Fry stated that the board was considering making changes to the proposed wording and, as a result, the entire process of making the change, which takes approximately 45 days, will need to start all over again.
Fry expressed hope that the public meeting can be arranged for the commissioners meeting in May.
The process of arranging the meeting was initiated on Jan. 16, when the board decided to advertise the wording changes. Fry did not clarify on Monday how the revised wording and delay of the meeting were possible without another vote from the full board of commissioners.
What Fry did clarify was that the new wording, which has not yet been released to the public, will require the entire process of sending it to the Montgomery County Planning Commission as well as the Pottstown Metropolitan Area Regional Planning Committee for feedback to start again.
That process became fraught with rejection in the past two months when the regional planners twice refused to take action on the proposed zoning language despite what both Upper Pottsgrove Commissioners Chairman Trace Slinkerd and Montgomery County Planning Commission Executive Director Scott France say is little basis for inaction.
On March 15, France sent a letter to the local planners saying “I really recommend the region to focus on their decision on the specific parts of their review as outlined in the Intergovernmental Agreement with the understanding that the proposed zoning change, or the requirements of any zoning code for that matter, cannot override any existing legal restriction on the use of the land.”
France wrote that the regional planning commission’s only role in this process is to decide if the zoning change language proposed conflicts with the region’s comprehensive plan. Since other towns in the regional pact, like North Coventry and West Pottsgrove, “allow for similar municipal use permissions throughout all or most of their districts,” standing against Upper Pottsgrove having similar language is unfounded and inconsistent.
“This process was not meant to openly discuss the merits of any zoning proposal beyond its direct effect on the region’s responsibility to maintain residential fair share, and the provision of non-residential uses within the planning area. However, the process does recognize that, while not the grounds for a consistency denial, the region may still want to make additional advisory comments to the municipality proposing the map or text amendment,” France wrote in the letter, which he shared with The Mercury.
However, France was also careful to point out that while the county planners see no inconsistency with Upper Pottsgrove’s proposed language allowing “municipal uses” to be built in open space, that should not be mistaken as an endorsement of any particular plan.
“We do believe that if a government entity buys land for open space preservation using a taxpayer-funded open space program such as an earned income tax, then it should remain as publicly preserved open space,” France wrote.
“We are aware of the public controversy and a current legal case surrounding the Smola tract in Upper Pottsgrove, and how this ordinance change might be seen as a way to further enable the construction of municipal use structures on that tract. The Planning Commission believes that this ordinance would not provide any additional freedom to develop that tract outside of what can already be done, or what may ultimately be done pending the outstanding court case,” France wrote, adding that in a previous letter to the township “I also clarified that our acceptance of the proposed change was not an indication that any parcel or site was appropriate for all municipal uses and it should not be seen that way”.
France mentioned that extra protections and considerations, like deed restrictions, can prevent open space parcels from becoming a site for things like municipal complexes no matter what the zoning says. There is some debate about whether any such restrictions exist for the Smola farm.
Many of the properties bought by the township for open space have deed restrictions, some of which are very strict. Others don't have deed restrictions, and I think that was intentional because they were built on later. The title is important, and the Evans Road tract where we're building a municipal complex doesn't have deed restrictions on purpose. I suspect this was done on purpose because two years later a commercial cellphone tower was built there, which greatly benefited all of us.
Some people argue that a note on the minor subdivision plan, mentioned in the deed created when the township bought most of the Smola Farm land and which specifies the use as open space as part of a county program, makes the township's plans illegal. However, France said he has investigated that issue regarding the Smola farm and believes the note was mistakenly added to the subdivision plan, as no county open space money was used to buy that land.
If county open space money had been used, a deed restriction would have been necessary.
Nevertheless, now that the commissioners have decided to revise the zoning language without voting, many of France's points may become irrelevant. It's unclear how the county planning commission or the regional planning committee will react to the new language proposed by Upper Pottsgrove until it is written and submitted, starting the process over again.
