Liberty Blog

The township's policies are both bad for liberty and the environment

Encompassing the lands from the Delaware River above “New Castle Towne” to the 43rd degree of northern latitude, and five degrees of longitude west, the 1681 charter of a province called “Pensilvania'' handed broad powers to William Penn. Despite being handed “all the soyle, lands, fields, woods, vnderwoods, mountains, hills, [and] fenns,” Penn’s charter of privileges for his citizens, issued in 1701, delineated liberties and established a framework of law for “any Complaint, Matter or Thing whatsoever, relating to Property.” Penn’s sons then promptly used fraudulent contracts to steal land from the Lenape nation. 

In late 2021, this tradition was kept alive by Upper Gwynedd Township, which attempted to condemn and seize a 33-acre plot known as the Martin Property through the process of eminent domain. As the community rallied against forcibly creating a municipal park, the township rejected compromises that would have created needed multi-unit housing while preserving two thirds of Martin’s land. The ongoing saga poses questions that Montgomery County should seriously consider. If open space is a priority, why is it still vulnerable? Does zoning actually accomplish its desired aims? And why is eminent domain still favored by local governments?

More Money, More Problems in Montgomery County

Since the last census, Montgomery County has grown by 56,679 residents to a total of 856,553. The county’s gross domestic product grew 31% to over $81 billion, fueled by increases in scientific and technical services among others. The cost of housing grew as well. In pre-pandemic 2019, the median value of an owner-occupied housing unit in the county was $330,600 - almost a 12% increase from 2010. If prices are any indicator, the supply of housing is lagging.

Simply refusing to let the market build more housing isn’t an acceptable option. For one, lack of available housing can have strong negative effects on health, education, and other social outcomes. For another, there are unintended consequences to limiting population mobility. A recent study by Princeton and UVA psychologists found that immobile populations tend to become “less individualistic, less trusting, unhappier, more insular, less risktaking, more cynical, more suspicious, and more pessimistic.” Scarce housing fosters collectivism, and by contrast, “when mobility is higher in society, so too is individualism, trust, optimism, a sense of individual freedom, and a sense that hard work leads to success.”

With no apparent relief in the lower and middle parts of Montgomery County, the past decade of population growth has often been highest in areas of cheaper prices and lowest housing density - the dreaded suburban sprawl. That’s due in part to demand. But it’s also a result of municipal codes meant to protect the status quo.

Want to preserve open space? Allow dense housing.  

The real culprit for Upper Gwynedd’s lack of open space is, predictably, Upper Gwynedd Township. More than 2,500 acres, or 48% of the entire municipality, is zoned for R-2 Residential which permits only single-family homes with yards on all sides. 

That’s three times larger than the 752 acres making up Limited Industrial, the next smallest zone. The Martin property's proposed townhomes, according to township commissioners, are “double the density allowed in Upper Gwynedd Township.” With no choice but to build half-acre lots 120 feet wide, sprawl is all but inevitable. If the commissioners stick by zoning that enforces unintended outcomes, open space will continue to disappear. 

Townships shouldn’t force these restrictions on property owners. Beyond housing, zoning has been used to restrict protected speech, stifle private charity, and enforce racial discrimination - a strong argument for eliminating it altogether. Without that imposition, new possibilities arise for repurposing suburban blight across Montgomery County.  The transit-adjacent but failing Willow Grove Mall is one example. The closure of Pennsylvania’s final Sears department store is not a loss, but an opportunity to transform empty parking lots and underused space into dense, mixed use residential development with 365 housing units. An equivalent development in Upper Gwynedd could require at least 182 acres, further depleting open space.

Private Property and the Nuclear Option

During the Cold War, game theorist Thomas Schelling devoted himself to a problem of methodological individualism: how to “manage competition, preserve one’s vital interests, and still survive” in the face of nuclear war. In 1978 he authored Micromotives and Macrobehaviors, which took the question further. In a world where individuals all act self-interestedly, how can any society-wide outcome be achieved?

“Though planning is often associated with control,” Schelling remarked, “the crucial element is often coordination.”

Montco 2040, the county’s comprehensive plan, is meant to be a “shared vision” based on public engagement and feedback. If designed well, it can connect the right partners. Private organizations are already preserving land in Upper Gwynedd Township and across the whole county. Less than three miles from the Martin property, the Natural Lands trust maintains a permanent 279-acre preserve. In Lower Moreland, the Pennypack Ecological Restoration Trust preserves over 800 acres, protecting water resources and restoring piedmont forest ecology. 

Public-private partnerships with such organizations present a far less coercive preservation option. If private land remains subject to confiscation at the whim of authorities, it lacks any true permanent protection. After all, a government with the power to arbitrarily take private land for preservation also has the power to seize land for any purpose. There is no room for eminent domain in the rule-of-law framework of a liberal society.

This is a lesson that township officials and county executives must be taught. The Montgomery County Transportation Authority, tasked with acquiring land for transportation projects, exemplified this attitude in an FAQ regarding condemned land for Norristown’s Lafayette Street extension. (The chair of the MCTA is a senior employee of the project’s design firm.) Here they make the absurd argument that eminent domain is not “a seizure or forfeiture of land” because the victim is paid afterwards - logic which would never be applied to any other kind of offense. 

Eminent domain represents the nuclear option - certain harm with no guarantee of victory.

Conclusion

Closer things are more closely related than things further away, so it’s only human to desire control over our close surroundings. But there is a line. The right of others to control and develop their land in turn protects your own right to do what you wish with your own property. If open space is truly a priority for the people of Montgomery County, it’s time to build with density in the right places rather than mandate sprawl and create partnerships rather than carry out seizures. The motto is simple: Yes in Montco’s Back Yard.

Josh Marcinik is the current vice-chair of the MontCoLP committee and a professional geographer with local planning experience. He has an MA in Geography and is a GISCI Certified Geospatial Professional.