How New Development Can Help Fund Farmland Preservation

It seems like an oxymoron, but there is an opportunity to score funding for a municipality's Farmland Preservation Fund when a greenfield is sold to a developer. At least there is here in Pennsylvania with how our real estate transfer tax is divvied up after a property sale. In PA, the buyer and seller each pay a 1% transfer tax. Of that 2%, the municipality gets one half and the local school district gets the other half. For larger municipalities or places with large commercial or industrial properties that change hands from time to time, the local cut of the real estate transfer tax can be a nice supplemental revenue stream.

Back Story
I've blogged previously about a seemingly shady land deal that happened in 2010 here in Lower Macungie Township, so if you've already read about this back story please feel free to skip to the next section.  Lower Macungie is 22.6 square miles and is home to nearly 31,000 people. Over the past 20 years, we've experienced a lot of farmland being lost to developments - mostly residential, but some commercial and light industrial too. In 2010, the township's Board of Commissioners entered into a closed-door re-zoning agreement with the owner of the largest contiguous tract of agricultural land in our township, about 700 acres, nearly all of which was zoned for agricultural preservation. That land is now zoned as light industrial, highway commercial, and residential.

What did the township get out of that deal?  The guarantee that the land owner, one of the largest land owners and speculators in the two-county Lehigh Valley, would withdraw his proposal to build a quarry on that land. But that quarry proposal was just a bluff. If he had built a quarry, which was allowed under the agricultural zoning, it could only have been a fraction of the size he originally proposed, because: (1) there is a major petroleum pipeline easement running directly through the tract; and (2) I doubt that he could not have gotten approval from the PA Department of Environmental Protection (PADEP) to dewater the quarry to a workable depth without completely dewatering the adjacent Little Lehigh Creek, designated by PADEP as a High Quality Cold Water Fishery.  But the board of five commissioners at that time included three Realtors. The Realtors would be getting more inventory into the local real estate market if the land was developed, so it certainly worked out for them. Let's not even start talking about how the local farm roads cannot currently handle the truck traffic from the nearby warehouses that have already been built in the area.  

A Warehouse Grows on a Farm Field

Part of 700 acres of land in Lower Macungie Township that used to
be zoned for agricultural preservation but is about to be developed

into several large warehouses. (photo credit: www.mcall.com)

Three light-industrial parcels that were subdivided from 700 acres of formerly preserved agricultural land have been sold to a developer and are going through the approvals for construction of large warehouses. These will be the first of several light industrial parcels and commercial parcels sold and developed. Eventually there will be 400 new homes as well. All of these new greenfield projects are thanks to our previous Board of Commissioners that facilitated the sweetheart rezoning deal for our local land baron, who has an industrial-scale turkey farm that he tends to when he is not planning his next greenfield development project. Over the last several decades this nominal turkey farmer, and his late father before him, made a habit of buying thousands of acres of local farmland, farming the land for a while, and then selling the land off to developers when the time seems right. At least half of the 700 acres involved in the 2010 rezoning deal had already been zoned for agricultural preservation when the land baron originally bought the land. And he has the clout to get Realtors who moonlight as local politicians to bow before him, kiss his ring, and rezone land - without even requiring him to pay to upgrade the local roads that would service the land he wants to develop. But this is all in the past now. So how do we make lemonade out of this lemon of a rezoning deal?

Plans for new warehouses on land formerly zoned for agricultural preservation

in Lower Macungie Township. (photo credit: WFMZ.com)

By the time the 700 acres of formerly preserved farmland is fully developed, the township's total share of the real estate transfer tax revenue could be as much as $600,000. So far we've already seen $120,000 come into the township coffers from this revenue stream.  Since the residents of Lower Macungie were shafted on this rezoning deal that will convert 700 acres of farmland to sprawling warehouses, strip commercial boxes, and 400 homes with kids to burden the local schools, shouldn't the proceeds from the real estate taxes be used to offset that loss of open space? All real estate tax revenue from these former 700 acres of preserved farmland should be designated for a farmland preservation lockbox and used to help to purchase development rights from other local farms.

Unfortunately, $600,000 will be a drop in the bucket to purchase enough development rights to make a difference, but it is critical that we begin with the real estate tax revenue from this poster child for poor land use decisions and use it as seed money for a deliberate and defined effort to slow down the pace of greenfield development within our community. If we can start with earmarking this real estate transfer tax, we can then have a more serious discussion about a referendum to ask voters to authorize an earned income tax to more fully fund farmland preservation in our community.  Save it or pave it.

Political Attack on PA's Riparian Buffers Requires Immediate Action

The Pennsylvania state Senate is poised to vote on a bill that would remove protections for riparian buffers along streams designated as High Quality (HQ) and Exceptional Value (EV).  These are the kinds of streams that support naturally reproducing populations of trout and have the macroinvertibrate diversity to sustain trout populations.

State Rep. Marcia Hahn (R-Northampton)

HB1565 was introduced by Rep. Marcia Hahn (R-Northampton) and approved by the House last month.  The bill is now before the state Senate and could be voted on as early as next Tuesday when the Senate reconvenes after their Columbus Day weekend break.  If passed, the bill would eliminate the requirement for a 150-foot wide riparian buffer between a project involving earth disturbance and an adjacent EV or HQ stream.

“We have seen significant frustrations under the current regulations as businesses, landowners and homebuyers alike have expressed their concerns with the riparian buffer requirements and the negative impacts they have on development and land use in many areas of the Commonwealth,” said Hahn. “Oftentimes, this has been seen as an instance of eminent domain without compensation as landowners could be prevented from using their own property.”

No, Rep. Hahn. This is nothing like eminent domain. What we have now is a regulation that protects environmentally sensitive waters of the Commonwealth and the fish and other organisms living in and around them from irresponsible land uses that would degrade the downstream portions of these streams. A landowner does not have the right to use their property in a manner that poses a real threat of degrading HQ and EV waterways.  For Rep. Hahn to posture this bill as a landowner rights issue ignores the fact that Pennsylvania's natural resources, including its waterways, are “the common property of all the people, including generations yet to come (Article 1, Section 27 of the PA Constitution).”  Therefore, no landowner has the right to conduct activities on their land that can cause sedimentation or contaminants to enter EV or HQ streams.  Other than that, they may use their property in any legal manner they chose.

Earlier this week, HB1565 was amended and voted out in the Senate Environmental Resources & Energy Committee. The amendments, however, could not repair a bill that is fundamentally detrimental to environmentally sensitive waterways. The two amendments did the following:

(1) Clarified that replacement buffers must occur along special protection waters within the same drainage list. This means that buffers could be destroyed in one tributary of a main EV or HQ stream as long as the developer beefs up buffers in a section of another tributary of the same main stream. This is a nonsensical compromise.

(2) Allowed a concession that alternative Best Management Practices can be substituted instead of a buffer as long as the alternatives used are “collectively…substantially equivalent to a riparian buffer…” This amendment essentially recognizes that riparian buffers are the most effective management tool. So then why compromise at all and remove protections for riparian buffers?

Little Lehigh Creek in Lower Macungie Township, PA.
A designated HQ stream (photo by author).

So, Rep. Hahn, please do not frame this bill as a bogus landowners rights battle.  This bill seems like nothing more than an attempt to ingratiate yourself with developers seeking to squeeze a few more units into projects bordering environmentally sensitive streams.  Too bad those developers cannot comprehend that protecting adjacent streams has a positive effect on the value of their finished project.  Who wouldn’t want to live next to a pristine and well-protected stream?

Please email your state senator today and urge them to vote against HB1565 when it comes to a vote. There is not much time left to ensure our headwater streams remain protected with proper riparian buffers.

If you don’t know who your PA state senator is, you can look them up here (http://www.legis.state.pa.us/cfdocs/legis/home/findyourlegislator/index.cfm) and find their email address.  Please do it this weekend.

Winning With Open Space Preservation

What do we mean by open space preservation?  That’s a question that some residents here in Lower Macungie Township, where I live, are starting to ask.  Lower Macungie has the dubious distinction of having been the fastest growing municipality in Pennsylvania for the decade from 2000 to 2010.  In that decade, Lower Macungie's 22 square miles gained 11,413 new residents, a 59% increase from 2000.  We now have about 31,000 residents.

Many current residents, whether they have lived here 5 years or 45 years, are lamenting the loss of so much of the farmland that had originally attracted them to this once rural area.  So naturally, there has been talk of trying to get a coherent open space preservation policy established in Lower Macungie for quite some time.  But when locals say Lower Macungie needs to preserve open space, what exactly does that mean?

To answer that question, I first have to explain what has happened to the local farm land over the past several decades.  The problem with much of Lower Macungie's farmland is that, several decades ago, a significant portion of it was zoned to allow subdivision into residential lots with a minimum size of either 12,000 or 18,000 square feet.  That zoning decision effectively opened the door for developers to begin offering farmers a sizable nest egg for their retirement in exchange for purchasing their farms.

So if we want to preserve open space, are we talking about competing with developers to buy these local farms?  Not necessarily.  Buying land outright is not really an efficient way for a municipality to preserve open space.  Municipalities don't usually want to be in the farming business or the real estate management business.  Instead, the most straightforward way to preserve open space is to find a buyer for the land owner's development rights.  It could be the township.  It could be the county.  Or it could be a non-profit land trust organization.  Generally, the cost of the development rights is simply the difference between how much a developer would pay for that farm and how much another farmer would pay to buy the land to continue farming it.  And it could be a significant windfall for a self-employed farmer who needs to supplement meager retirement savings.

Buying development rights from land owners is a win-win.  The farmer wins because he or she gets paid for selling a valuable but intangible portion of their farm.  They can continue to farm their land and use it as they please.  They may also pass it down to their children to continue the farming tradition.  Severing the development rights simply makes the farm unmarketable to a developer.  So the rest of the community wins, because one less farm will be lost to development and all of the traffic, stormwater runoff and school crowding associated with it.

In a later post, I'll explain how to fund purchase of development rights.

Instead of rows of corn, picture rows of several hundred houses at this farm located in the heart of Lower Macungie. Over 300 new houses could be built on this 130-acre farm, bringing gridlock to one of the main north-south arteries in the township. (photo by author)

PA Regulators Falling Short on their Duty to Protect the Public from Fracking Risks

Hydraulic fracturing, commonly known as fracking, is a process that blasts bedrock to create fractures for natural gas to escape form the bedrock. Fracking is used in unconventional wells that are extended horizontally from an initial vertical borehole. The process is used in Pennsylvania to extract natural gas from the Marcellus Shale Formation, which is encountered as depths as great as 8,000 to 10,000 feet below ground in the northern and western parts of the state.

Hydraulic fracturing of an unconventional gas well.

( http://www.nt.gov.au/d/Minerals_Energy/?header=How%20do%20we%20access%20Unconventional%20Gas)

I am not anti-fracking. As a geologist, I understand how fracking is supposed to work, and I think it’s a viable means of extracting natural gas from deep formations in which conventional drilling is not practicable. But I also think that Pennsylvania has done a horrendous job of overseeing how the energy companies operating in PA drill for natural gas and manage their drilling wastes.

The Pittsburgh Post-Gazette does a great job covering Marcellus Shale gas drilling issues in PA, including reporting on negative environmental aspects of bringing this natural resource to market. Last week the Post-Gazette ran a great editorial piece that cited data they obtained from the Pennsylvania Department of Environmental Protection (PADEP) about compromised water supplies related to oil and gas operations. The editorial also criticized PADEP for issues with public access to information related to water supplies contaminated by oil or gas drilling activities. Many of the chemicals used in the fracking process are claimed by drillers to be trade secrets. And PADEP will not release information about those chemicals. So the public and their advocates have no opportunity to evaluate the risks they may be facing from fracking fluid contamination. 

When the reports about methane in residential water wells near Marcellus gas wells in northern PA first started hitting the media five or six years ago, the red flags should have been clear to anyone familiar with drilling. The drillers were swearing that there was no way methane from their target formation at 8,000 feet below ground could have contaminated the shallow aquifer only 100 to 150 feet bellow ground where most domestic wells are built. And, if the wells were constructed properly, that should be true. But the drilling boom came upon PADEP too quickly. The DEP had neither the field inspectors nor the funding to hire enough field inspectors to be able to ensure that gas wells were being constructed properly.  

Steel casing is supposed to be cemented into the surrounding bedrock to a depth far below the drinking water aquifer. The cement slurry, a mixture of cement and bentonite clay, effectively seals the annular space around the outside of the steel casing to prevent any drilling fluids or gas from leaking around the casing and getting into the aquifer. And a good annular seal also prevents surface runoff water from seeping down along the outside of the casing and tainting the underlying drinking water aquifer. That is assuming the wells are being properly sealed.

In my job, I have overseen drillers installing hundreds of groundwater monitoring wells or remediation wells designed to delineate or treat petroleum, solvents or metals contamination in groundwater. There have been many times I have given the driller my construction specifications and, when they thought I wasn’t looking, caught them cutting corners. Most often the corner getting cut involved how they were grouting the well materials in the borehole. And that's exactly what I think happened in the majority of instances in which methane was documented in domestic wells in close proximity to an unconventional gas well.

If the cement used to seal the steel casing into the borehole is mixed with too much water, the cement will shrink as it cures and will pull away from the borehole walls. If not enough bentonite is mixed with the concrete, if it is not mixed uniformly or if it is pumped too quickly down the borehole, there may be pockets of concrete that do not seal completely to the borehole walls. These are the conditions that PADEP inspectors should have been on hand to look for during well drilling. Presumably, at this point in the drilling boom, something as basic as proper well grouting has been rectified between drillers and PADEP.

Fracking fluid impoundment in western PA.

(photo credit: Observer-Reporter.com)

Assuming that gas wells are now being properly constructed, spills of drilling fluid are probably the biggest on-going concern for public health. Spills of drilling fluids are a largely preventable threat to groundwater and surface water resources. A different Post-Gazette editorial published earlier this week cited the disturbing frequency of drilling companies failing to detect or report spills on their drilling sites. Half of the drilling fluid spills for which PADEP fined drillers through 2012 were not reported to PADEP by drillers as required by law. Instead, they were reported by drilling site land owners or neighboring property owners or observed by PADEP inspectors or other officials.

PADEP needs to be better funded to better police Marcellus drilling sites so that drillers will be less likely to carelessly allow preventable spills to happen and will be more diligent in policing their sites to promptly discover and act on truly accidental spills. PA’s groundwater and surface water resources depend on it.