14/11/2025
Selections and highlights from the judge’s 11/14/2025 decision that prohibits Upper Pottsgrove Township from building a municipal complex on the Gilbertsville Road Open Space.
The Proposed Municipal Complex Would Violate the Open Space Act.
(Building) the proposed municipal complex on the Gilbertsville Road Property would violate the restrictions on the use of open-space tax revenue imposed by the Act. …. In this case, the Township acknowledges that it acquired the Gilbertsville Road Property with open-space tax revenues.
The fact that the Township later reimbursed the Open Space Fund with general revenues through an "adjusting fund entry" does not change this conclusion.
In short, the Act does not permit open-space tax revenues to serve as a line of credit to fund purposes not authorized by the Act.
(The Township Commissioners) argue that the Plaintiffs are guilty of undue delay in commencing this lawsuit,.. (and) waited until after construction contracts were awarded. …In response, Plaintiffs assert that in the Smola Case, a motion for preliminary injunction was denied on the ground that the commencement of construction was not imminent, and they did not want to make the same mistake in seeking an injunction too soon. They further argue that the Court's Decision in the Smola Case was sufficient notice to the Township of a potential claim to prevent construction on the Gilbertsville Road Property.
(The Judge concludes that the Plaintiffs are not guilty of “undue delay” in filing the injunction, since courts have previously decided that delay) is not measured from the date that the Township announced that "it intended to build" on the Gilbertsville Road Property, but rather is "measured from the date construction started."
Under that measuring point, where construction has not yet even started, the “undue delay” defense must fail.
The Township has argued that an injunction would subject it to significant liability for breach of the construction contracts that it has entered. That argument, however, cannot be tested, as the contracts were not offered in evidence. Perhaps the contracts have a provision that exculpates the Township from liability if the construction is enjoined by a court. If there is no such provision, perhaps the Township should have insisted that it be included in the contracts, in view of the Decision in the Smola Case.
The Court takes no pleasure in concluding, for a second time, that the Township's proposed construction should not proceed, especially in view of the demonstrated need for a new municipal complex. In view of that need, and in view of the Smola Case, it is perplexing why the Commissioners chose the reckless path of purchasing the Gilbertsville Road Property with open-space tax revenues.
DECISION
AND NOW, this 14th day of November, 2025, on the basis of the foregoing Findings of Fact and Conclusions of Law, a Decision is hereby rendered in favor of Plaintiffs Elwood Taylor, Albert Leach, and Tyrone Robinson for an injunction against Defendant Upper Pottsgrove Township ("the Township") and all persons acting under the authority of the Township, including its Commissioners, from proceeding with the construction or installation of the proposed municipal complex on the property in the Township located at 2290 Gilbertsville Road.