Small Takings on Preserved Agricultural Land

Pa. development fight grows on ‘sliver’ of farmland
Updated: JANUARY 22, 2017 — 3:03 AM EST
by Michaelle Bond, Staff Writer @MichaelleBond

It is a mere “sliver” in the county that has the state’s richest harvest of farmland, more than 100,000 acres of which is off-limits to development.  But conservation activists say the future of land preservation in Pennsylvania hinges on the fate of a patch of Lancaster County farmland that is less than a third of an acre.  So-called sliver taking is a process in which small parcels of farms are seized by eminent domain to accommodate road projects.

At the center of the controversy is a plan by the Hurst family, owner of the popular Oregon Dairy complex, to build a 75-acre housing and retail development on property it owns not far from a busy highway in growing Manheim Township, outside Lancaster City. The Hursts say the entire region would benefit from the development.  But its future is contingent upon township officials’ condemning 0.3 preserved acres of their property for a turn lane.  Beyond residents’ typical concerns about increased traffic, sprawl, and the threat of changes to the region’s character, the prospect of condemnation is particularly upsetting to preservationists.

Over the last five years, the number of “sliver takings” of preserved Pennsylvania farms for public road improvements has increased, said Douglas Wolfgang, director of the Bureau of Farmland Protection at the state Department of Agriculture. That’s because the amount of preserved land keeps growing, along with available funds for infrastructure improvements.

Victor Hurst, whose family has farmed in Manheim since 1952 and is a partner in the development, said he and his family “don’t take this kind of thing lightly.”  “Coming into this, we knew it would be an uphill battle,” he said.

The township’s five commissioners are scheduled to decide Monday night whether to allow the developers’ application to go forward, an early step in what would be a long process. The commissioners did not respond to requests for comment, but the planning commission has recommended they approve the conditional-use application, since it meets zoning requirements.  Any vote to take the land would meet immediate opposition, said James Tupitza, a West Chester-based lawyer representing a family that owns a nearby preserved farm and has legal standing to oppose the development.

“I don’t really believe the township would take the steps to do the condemnation, because I don’t believe they want to start a war,” Tupitza said.

He called this a “really simple case.”

“Can a municipality condemn private property that’s subject to a conservation easement for the purpose of making that property available for private development?” he said of the issue in the case.

Hurst said the improved intersections he plans will be safer and benefit more than just residents of the proposed development. He said his family is willing to preserve other parcels of land in exchange for the development.

James Cowhey, executive director of the Lancaster County Planning Commission, said he hoped the proposed development could help fill a “critical” need for affordable housing in the county.

Manheim’s population has grown 35 percent since 1990, according to Census figures, and commercial and residential developments have sprouted. Signs advertising open houses and new rentals beckon travelers who hop off Route 222 and drive five minutes down Oregon Pike to one of the more built-up parts of town.

The proposed project is in a more rural area, but Lancaster County officials have designated it for growth. The township’s zoning code allows for commercial and residential uses at the Oregon Dairy site.

The development, called Oregon Village Center, would sit on two pieces of land, at the current dairy site and across the street, according to preliminary plans. The project would include 53,400 square feet of retail space, a 70,000-square-foot supermarket, a new restaurant, a 120-room hotel, a bank, and a 450-seat banquet room. It would add 565 houses and apartment units to a town with about 16,000 residences.

The township and the Lancaster Farmland Trust co-hold the easement over the 0.3 acres at issue.

The project’s developers asked the trust for an amendment to the easement in 2014 and 2015, but the trust’s board rejected the request both times, deciding the road improvement was for private benefit.

“We’re not permitted to amend the easement when it’s for the benefit of a private individual or entity,” Karen Martynick, executive director of the Lancaster Farmland Trust, said. “Condemnation should only be used in the most extreme cases for public safety and public benefit.”

Preservationists say this is true for any piece of land, no matter how small.

“It’s not the square footage. It’s the fact of it,” said Mary Haverstick, founder of Respect Farmland, a group of county residents who oppose the loss of farmland. “And the fact they think they can propose it.”
Marty Wenrich, who hired Tupitza as his lawyer to fight the development, lives on a farm a couple of properties over. In the early 2000s, he and his wife, Esther, preserved the farm on which they raised their eight children.

This development is right in the heart of the preserved farmland,” Wenrich said. “The farmers around it decided to preserve their farms and pass it on to the next generations.”

Published: January 20, 2017 — 6:49 PM EST | Updated: January 22, 2017 — 3:03 AM EST

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