The Octorara Area School District will not be testing the constitutionality of Act 319, better known as “Clean and Green,” according to Superintendent Thomas Newcome.
Newcome told the school board July 11 he received a legal opinion from Clarence Kegel of Kegel, Kelin, Almy and Grimm LLP, which seemingly upholds the state’s authority to give tax preference to farms.
School board members urged Newcome to get a legal opinion about the possibility of challenging the act’s constitutionality following a recent public comment from Thomas Seth of Sadsbury Township, who said his research indicated school boards should be reimbursed if some properties receive a tax break.
According to Octorara administrators, the district “loses” $5.4 million annually in revenue to properties enrolled in Act 319, which receive a tax break for their role in agriculture. But instead of returning the revenue lost to open space to the school district, the state requires that the school board balance its budget by either raising taxes, closing programs, or passing the burden on to other property owners in the school district.
Legislation such as House Bill 339 which could require the state to reimburse school districts for Clean and Green revenue, have received very little state-wide interest, according to state Rep. Bryan Cutler and state Rep. John Lawrence, who have addressed the school board on the issue during the past year.
Other Lancaster and Chester County school districts are also impacted by Clean and Green, including Pequea Valley, Solanco, Lampeter-Strasburg, Elanco, and Coatesville.
A suit to force the issue appeared to be a glimmer of hope during a year of uncomfortable budget cuts which included teacher furloughs, combining schools into a junior-senior high school, cutting the athletic director’s position, and outsourcing the evening custodial work.
Kegel believes Pennsylvania's constitution provides the legislature with the authority to give tax preference to farms, and does not require state reimbursement for the loss of revenue. Kegel cites Section 2(b)(i) in his opinion.
He also noted that Section 2(b)(ii) of the constitution does authorize the legislature to give tax preference based on age, disability or poverty. Under this clause, the state must reimburse local school districts for this tax loss. This has been done through the Senior Citizens Rebate and Assistance Act, which the state funds by lottery revenues.
“Mr. Seth was close, but he was looking at the wrong part of the statute as the constitution is written,” Newcome said.
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