How Do You Make Sure that Open Space Stays Open?

When a community invests in open space, the expectation is permanent preservation. However, land is only truly protected “in perpetuity” when specific legal safeguards are in place. This article examines the differences between undeveloped and conserved land, the vital role of Land Trusts and Conservation Easements, and how the PA Open Space Lands Act protects properties purchased with taxpayer funds, as demonstrated in the recent Smola Farm court ruling.

Undeveloped Land vs. Permanently Conserved Open Space

So often, a homebuyer selects a house or neighborhood because it’s close to open space and parks. Then, just a few years later, the view changes completely when the bulldozers appear. Is there anything that can be done about this?

The answer depends on whether the land was permanently conserved or merely undeveloped:

• Undeveloped Land: The property owner has the right to make reasonable use of the land as defined by the local zoning ordinance. Preserving it once bulldozers appear is usually too late.
• Conserved Land: When land has been permanently conserved by a land trust or conservancy, the job of making sure it stays open “in perpetuity” is written into a legal document called a conservation easement.

The Legal Power of the Conservation Easement

A conservation easement is recorded against the title to the property so that no developer can buy it, subdivide it, and build a new development on it. The land trust has the duty of making sure that deed restriction is honored.

Case Study: The Smola Farm and the PA Open Space Lands Act

When open land belongs to your township or borough, state laws can stop local governments from changing the open space use. In Matthew E. Murray and Nathaniel Guest v. Trace Slinkerd and the Upper Pottsgrove Board of Commissioners (2025), the Court ruled that a municipality cannot acquire land via open-space tax revenue and then develop it for another purpose. To win this case, the neighbors had to prove:

• Voters approved an Open Space Tax referendum (2006) to tax themselves for preservation.
• The Board of Commissioners purchased the property (Smola Farm) specifically for open space.
• Open space tax revenues were used for the purchase.

The Court concluded that building a municipal complex would “betray the bargain” made with the public and “materially impair the open space benefits” of the land.

Proactive Steps for Permanent Preservation

Current Supervisors and Commissioners can take specific steps to ensure land remains open space long after their terms end:

• Partner with Professionals: Work with a land trust, local watershed conservation non-profit, or land conservancy to ensure an entity is authorized to preserve the land in perpetuity.
• Record Protections: A conservation easement can be recorded in favor of the land trust on the title to the land.
• Formalize Intent: The Township can record a deed restriction noting the land was purchased with open space tax revenues to help neighbors enforce the law’s restrictions.
• Local Government Protections : The Township can use a recorded Declaration of Public Trust to record its intentions to preserve the land as open space. WeConservePa.org, a PA nonprofit dedicated to helping preserve land, has a Model Declaration of Public Trust in its library that will help a local government do this:  WeConservePa Library

The Donated or Dedicated Property Act (DDPA)

Even if land was not purchased with tax revenues, Pennsylvania’s DDPA requires Orphan’s Court approval to change its use. Under this act:

• Lands dedicated to public use are held by the political subdivision as a trustee for the benefit of the public.
• Such lands must be used for the purposes for which they were originally dedicated.
• A court order for modification is only permitted if the original use is no longer “practicable or possible and has ceased to serve the public interest.”

Community Action and Participation

What can neighbors do to protect their community?

1. Pay attention and participate in local government.
2. Urge officials to take steps now to ensure land acquired as a park is forever preserved.
3. Organize and take action in court if a board fails to protect the open space.

Protect Your Community’s Open Space

Ensuring that a park, farm, or neighborhood green space remains protected “in perpetuity” requires more than just public intent—it requires sophisticated legal strategy. As demonstrated in the Smola Farm case, the Real Estate Law team at Timoney Knox LLP, led by professionals like Kate Harper, has the deep-rooted experience in Pennsylvania state laws necessary to hold local governments accountable and secure land against future development.

Whether you are a resident looking to enforce a dedicated use or a municipal official seeking to draft and record a permanent conservation easement, we are here to help you safeguard the land that defines your community.

Frequently Asked Questions (FAQ)

1.     How do I find out if the “open space” near my home is actually conserved?   County land records can show any recorded conservation easements. If there’s none, you cannot be sure the land is protected open space.

2.     Can a future Board of Commissioners overturn a conservation easement?   They can try but would probably have to get Orphan’s Court approval.

3.     What is the role of a Land Trust if a developer tries to build on protected land?   The conservation easement gives the land trust the duty and the power to stop prohibited uses from occurring on the land.

4.     Does the Donated or Dedicated Property Act apply to land donated by private citizens?   Yes it does—if the land was donated to a local government and accepted by that township or borough to be used as a park or open space.