Pottstown’s Land Bank is One Step Closer to Having Nearly Unchecked Discretion in its Property Sales Decisions

On Monday afternoon, the Pottstown Land Bank Board held its monthly public meeting.  On the agenda was a vote to approve its proposed Administrative Policies and Procedures.  Having already delivered my written opposition to the policies as drafted to the Land Bank Board, Borough Council, and the Borough Manager, I attended the meeting to put a face to the letter, to voice my opposition in person, and to make myself available to answer any questions that the Board may have for me.

When it came time to discuss the draft, I briefly reiterated my concerns, namely (1) that the policies (as drafted) give the Board incredibly broad discretion to make decisions about land dispositions on a case-by-case basis, with little-to-no checks on their own use of discretion, and (2) the lack of mandated accountability measures on potential purchasers of land from the Land Bank.

Not only were my concerns dismissed, but I was, in fact, told by multiple members of the Board that my letter needed further “editing.”  One Board member told me they were “offended” by my letter.  (“They” is used in the previous sentence as a gender-neutral singular pronoun, not to infer that the entire Board shared the same feelings.)  This Board member was offended by the mere use of the word “corruption” in my letter.  It should be noted, as you can read for yourself, that my letter by no means accused, inferred, suggested, or implied any impropriety by the Board or any of its members.  Rather, the letter clearly stated that the way the policies had been drafted would leave the doors open to potential corruption as a result of a lack of accountability measures.

The discussion of the draft policies eventually took a productive turn, and the Board took the time to address my concerns of the wide discretion the policies give to the Board.  Members of the Board, as well as the Board’s Solicitor, and Ms. Winifred Branton, Esq. of the Housing Alliance of Pennsylvania, attempted to ease my discomfort by stating that the policies were essentially “minimums,” and that some of the accountability measures I was requesting can be taken on a case-by-case basis, if the Board wants to.  Seemingly lost in it all was this: the fact that the policies allow the Board to take certain accountability measurements if they want to is precisely my concern.  I’d like to see  the Board adopt clear policies and standards for certain aspects of the disposition process that would eliminate, to the extent possible, the influence of favoritism and politics in each decision.  The Board does not share this desire.

The easiest way to demonstrate the level of discretion the Board has in making disposition decisions (that is, what property to sell, for how much, to whom, under what conditions…) is to share the only situation in which the Board has no discretion.  The current policies allow for the Board to take a number of factors into consideration in determining who is an eligible buyer of property.  However, no one factor is given any measurable weight or importance, and there is no clear evaluation process that the Board has to apply.  In fact, the only factor that would require the Board to find a potential buyer “ineligible” to purchase land from the Land Bank is if the potential buyer owns other properties in the Borough that are not up to code, or that have delinquent taxes.  That’s it.  Convicted felons are eligible.  Owners of blighted properties in neighboring municipalities are eligible.  Slumlords in neighboring towns remain eligible.  Even prior owners of the exact property that is being sold are eligible, even if they let the property become blighted in the first place.

Something else that’s concerning:  The way the draft is presently written, an applicant for the purchase of property need only to provide the Board with such information “as may be requested by the Board.”  This means that the Board can ask applicants for as much, or as little information as the Board wants, for any, or no reason at all.  But, the Board could also decide not to require the applicant to provide an affidavit stating that their other Borough properties are up to code.  The Board can, at its own discretion, not ask the applicant for any information before selling property to the applicant.

I shared with the Board other concerns I had, most importantly that the Board has absolutely no policies or procedures in place to make sure that transferees of land would be help accountable for ensuring that their property is being used to further the intended mission of the Land Bank.

Nonetheless, my concerns were duly dismissed with what became a sort of rallying cry from members of the Board: “We always can do these things you want us to do later on if we want to.”  The Board discussed two accountability measures that I proposed: one being a section on conflicts of interest, and the other being a section providing for certain instances wherein restrictive covenants imposed on transferred lands would be mandatory.  The Board briefly discussed these two additions to the draft policies, but ultimately these discussions went nowhere, and no such language was ever inserted.  The Board ultimately voted unanimously to approve the policies and procedures that you can read right here.

And so, we move on.  On Wednesday February 6th, and the Committee of the Whole, the Borough Council will decide whether to vote at its next meeting on approving the policies.  That meeting and vote would then take place on Monday, February 11th.  I will be speaking in opposition to these policies at both meetings, and urging the Borough Council to reject the policies and procedures as currently written.

The Borough Council should take into consideration this handbook for municipalities and their Land Banks, written by David Feldman, former Executive Director of Habitat for Humanity in Philadelphia, who played a significant role in the passage of Pennsylvania’s Land Bank statute, and acted as a consultant to the City of Flint, Michigan on their Neighborhood Stabilization Program implementation.  You can read the whole handbook, here, but the most relevant passages can be found on pages 32 and 33:

  • “A common challenge that land banks face during the disposition process is the appearance of transparency and lack of favoritism.  […] As a public authority, gaining public trust will require consistent application of rules to build a reputation of impartiality.”
  • “Creating a set of evaluation measurements will be necessary for determining how developers are qualified to purchase property, or to prevent the land bank from being used for political reasons.”
  • “The Pennsylvania legislation represents a best practice of this evolution, granting flexibility to local communities to set up land banks within jurisdictions and with oversight structure that is logical to their needs, while setting in place strong protections to maintain openness and fairness as well as efficiency in the operation of land banks.”

As of right now, there are no protections to maintain openness and fairness.  There is no evaluation measurement for determining qualified developers.  There is no set of rules for the Board to consistently apply.  I ask the Borough Council to reject the Land Bank Board’s Policies & Procedures until they include such minimum accountability measures.

Here are some resources on Land Banks for your own reading pleasure:

Land Banks in Pennsylvania: A Handbook for Counties and Municipalities

Land Banks & Land Banking

The Pennsylvania Land Bank Resource Guide