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BENSALEM TOWNSHIP SCHOOL DISTRICT v. BUCKS COUNTY COMMISSIONERS (04/06/73)

decided: April 6, 1973.

BENSALEM TOWNSHIP SCHOOL DISTRICT
v.
BUCKS COUNTY COMMISSIONERS, ET AL.



Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: The Matter of the Petition of the County Commissioners of Bucks County, under and by virtue of the authority vested in said County Commissioners by the Act of Assembly, January 13, 1966, P.L. (1965) 1292, Section 3, as amended 1967, December 21, P.L. 882, No. 395, Section 1, for the Approval of a Covenant of Private Land Use in Bensalem Township, Bucks County, Pennsylvania, Known As Tax Parcel No. 2-33-29, being the Property of Wladyslaw Kowalski, Owner, No. 1129 September Term, 1971.

COUNSEL

Leonard B. Rosenthal, with him Robert Baer Cohen and Abrahams and Loewenstein, for appellant.

Marvin L. Portney, for appellee, County Commissioners.

Frank R. Clokey, Special Assistant Attorney General, for appellee, Commonwealth.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt. Concurring Opinion by Judge Mencer.

Author: Blatt

[ 8 Pa. Commw. Page 413]

This is an action brought by the Bensalem Township School District (School District) seeking to have us declare unconstitutional the Act of January 13, 1966, P.L. (1965) 1292, 16 P.S. ยง 11941 et seq. (hereinafter Act 515), or, in the alternative to have us find that a covenant entered into between Bucks County (County) and Wladyslaw Kowalski (Kowalski), pursuant to this legislation, is invalid.

Act 515 was enacted for the purpose of permitting counties to enter into covenants with landowners in order to preserve their land as farm, forest, water supply or open space land. Act 515 consists of seven sections. At the time in issue,*fn1 that portion of the Act primarily in question here was Section 3, which read as follows: "All counties of the first, second, second A, third or fourth class are hereby authorized to enter into covenants with owners of land designated as farm, forest,

[ 8 Pa. Commw. Page 414]

    water supply, or open space land on an adopted municipal, county or regional plan for the purpose of preserving the land in the designated use. Such covenants and extensions thereof shall take effect upon approval of the court of quarter sessions of the county in which such land or the major part thereof lies. The landowner may voluntarily covenant for himself and his successors and assigns in right, title and interest that the land will remain in open space use as designated on the plan for a period of five years commencing with the date of the covenant. The county shall covenant that the real property tax assessment, for a period of five years commencing with the date of the covenant, will reflect the fair market value of the land as restricted by the covenant."

The County Planning Commission adopted a plan as contemplated by Section 2 of the Act*fn2 and on May 21, 1971, an Act 515 covenant was executed by Kowalski and presented to the County Commissioners concerning 37.31 acres of Kowalski's property. It is mostly tillable, but a small portion is woodland. The proposed covenant was submitted by the County Commissioners to the County Board of Assessment, and that body reported the unrestricted fair market value of Kowalski's property to be $309,600.00, or an assessed value on a countywide 30% ratio of $92,826.00. It further reported that the fair market value of the property, as restricted by the proposed covenant, would be $70,840.00, or an assessed value, applying the 30% ratio, of $21,250.00.

The County thereafter approved the covenant and submitted it to the lower court ...


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