Towamencin voters will encounter a unique ballot question during Tuesday’s Primary Election — the outcome of which could have lasting impacts on the township, its municipal sewer system, sewer rates, taxes, and form of government.
The question reads:
"Shall the Home Rule Charter contained in the report, dated March 9th, 2023, of the government study commission, prepared in accordance with the Home Rule Charter and Optional Plans Law, be adopted by the Second Class Township of Towamencin?”
For any resident who has spent time in the digital space or real world, you will have no doubt come across signs, social media posts, mailers, and elected officials canvassing door to door asking you to vote for or against the measure. But what does it really mean? What is the purpose of the Home Rule Charter? What impacts would a Home Rule Charter have on the township, and can it be used to overturn the pending sale of the township’s municipal sewer system?
It's a complicated issue, and it really depends on who you ask.
In this article, we will recap how the municipal sewer sale came to be, the efforts to overturn and negate the pending sale, and the opposition to the establishment of a Home Rule Charter that has surfaced over the last seven months. Information within this article comes from our prior coverage, coverage from other news outlets, editorials sent from the groups, and answers to questionnaires sent out to all parties last week by this news organization.
Before diving into the platforms, issues, and concerns, it is important to establish the groups involved in this story and their representative members.
Know the Roles
There are five total participants within this story, which includes:
Towamencin supervisors consist of Chairman Chuck Wilson, Vice Chairman Richard Marino, Kristen Warner, Laura Smith, and Joyce F. Snyder. All supervisors voted to sell the sewer sale except Snyder, who opposed the sale. For the duration of this article, when we reference the supervisors, we are referencing the four who voted to sell the system. Any statements or information provided by Snyder will be attributed to her.
Towamencin NOPE is led by Kofi Osei, who also serves as chairman of the Towamencin Government Study Commission along with Vice Chair Jennifer Foster, Christina Gallagher, Gisela Koch, Joseph Rumsey, Martin Cohen, and Mark Warren. NOPE opposes the sewer sale, was elected to the GSC in November 2022, and they are currently attempting to establish a Home Rule Charter with the aim of overturning the sewer sale.
Towamencin TRUST candidates include Douglas Kile, Connie Brown, Jeffrey Baer, Nancy Becker, Richard Fisher, Amy Tarlo, and Michael Main, who all ran unsuccessfully for the GSC in November 2022. Main then joined with his wife, Shannon, along with Joe Meehan, Gina Barnitt, Steve Storer, Carsten Pedersen, Chip Marger, Rich Burlingame, Vincent Caffarello, Robert Di Domizio, Rich Costlow, Kris Kazmar, and others to establish the No Towamencin Home Rule PAC. Some members of this group do not support the sale of the sewer system, however all members oppose the establishment of a Home Rule Charter in Towamencin.
The Sale of Towamencin’s Municipal Sewer System
The concept of selling the township’s municipal sewer system originated at the township sewer committee meeting on Sept. 3, 2020, where, following a presentation from Public Financial Management (PFM) on valuation and monetization of the sewer system, the committee recommended investigating the monetization of the sewer system and producing an analysis and valuation study, according to the township’s website.
In an op-ed submitted to North Penn Now, the supervisors said that, were the township to keep the sewer system, they would have to borrow and spend more than $58 million to provide upgrades and maintenance on the aging sewer system, upgrade storm water management, and to upgrade the fire station on Bustard Road.
"To meet these expenses, we would have to increase our debt and raise both sewer rates and real estate taxes,” said the supervisors. Click here for the figures they provided.
By selling the system, however, the supervisors said proceeds could be used to pay off all existing debt, eliminate the need for future debt, fund pension plans, and establish an interest-generating capital reserve, which they claim could generate $2 million annually without touching the principal. The supervisors said the interest could then be used to fund capital projects including police and fire infrastructure, the swimming pool complex, pedestrian and bicycle safety improvements, parks and walking trails, preservation of open space, and road improvements.
The concept of privatizing the municipal sewer system proved to be controversial, with Towamencin resident Kofi Osei leading Towamencin NOPE (Neighbors Opposed to Privatization Efforts) in public opposition to the sale. Osei and a coalition of residents argued that any money saved via not having to raise taxes to upgrade the sewer system would be lost via privatized rate increases for residents, adding that the rates would stay high long after the system renovations were completed, and arguing that the sale essentially left residents to the whims of a private corporation instead of elected officials and the local government.
"Private companies are beholden to their shareholders, and we firmly believe that water, wastewater, and stormwater management should remain at the local level through municipal authorities so that rates can remain in check and funds can remain within the local community,” said NOPE.
Both NOPE and the supervisors continued to argue their positions over the months that followed, until the supervisors signaled they had secured a bidder — NextEra — and intended to move forward with the sale despite the vocal opposition.
In May 2022, the Towamencin Township Board of Supervisors voted 4-1 to sell the township’s municipal sewer system, sewer plant, and all sewer amenities to NextEra for $115 million.
Supervisor Joyce Snyder was the sole dissident on the sewer sale in the 4-1 vote.
"The NextEra proposal offers our township a generational opportunity to reboot and reset our finances for the foreseeable future,” said the supervisors, in an op-ed defending their decision to sell the system. "With the money we collect in taxes, fees and the interest generated from the capital reserves, Towamencin will be in an outstanding position to meet its obligations to improve and maintain the infrastructure of our township and to upgrade and improve the quality-of-life services we deliver to our citizens.”
Towamencin NOPE Continues Fight Post-Sale via Pursuit of Home Rule Charter
Following the sale, Osei and Towamencin NOPE vowed to continue to fight to overturn the sewer sale, ultimately pursuing the establishment of a government study commission that could, in theory, create a Home Rule Charter that could pass legislation making the privatization of water/wastewater illegal at the local level — thus terminating the sale agreement through "no-fault language.”
"NOPE’s opposition to this sale has always been centered around the lack of transparency around the monetization of an asset, the unwillingness to listen and respond appropriately to citizen feedback, and the tremendous cost to ratepayers,” said the group, in a response to questions from North Penn Now. "This is a backdoor tax on residents to repay a loan in perpetuity.”
In order to continue their fight, NOPE collected enough support and signatures to have a ballot question added to the November 2022 election ballot seeking to establish a GSC. However, they were not alone, as a separate slate of candidates dubbed Towamencin TRUST (Township Residents United Serving Towamencin) entered the fray also seeking election to the GSC, should it be approved by voters.
Additionally, Supervisor Rich Marino penned a letter to the editor stating that while he was not against the formation of a GSC or the potential adoption of a Home Rule Charter, he had concerns with the narrow focus of NOPE’s intended study, as well as the speed at which they wanted to execute their plan.
"My concerns are the promises being made and the timeline proposed for this commission. The way the ballot question is phrased leads you to believe that the elected members of this Government Study Commission will undertake an organized examination of the existing township government and compare that to a Home Rule Charter,” Marino wrote. "Upon hearing that the NOPE candidates want to have the new charter on the ballot in May 2023, it appears that if they are elected to this Government Study Commission, they won’t be studying much of anything. The evaluation of our current form of government under the PA Second Class Township Code will be skipped as they have already decided to move to a Home Rule Charter; and since the timeline is so short, the document they intend to 'draft’ must already exist. So much for due diligence and input from the public. Their timeline does not allow for that.”
Ultimately, Towamencin voters supported the ballot measure to establish a GSC in the November 2022 election, with 5,410 of 9,467 (57%) voters being in favor and 3,482 (37%) voting against the measure. The percentages would later become the subject of scrutiny, with opponents claiming the "yes” votes only represented 41% of all 13,303 registered voters, however 3,825 registered voters did not vote on the issue — either via not engaging the question or not turning out to vote — meaning the measure passed with 57% approval from those that did.
None of the TRUST candidates gained more votes than the lowest NOPE candidate, meaning the Government Study Commission would consist entirely of all NOPE candidates.
Government Study Commission Comes Under Fire While Pursuing Home Rule Charter
With the Government Study Commission approved, the group was provided up to 18 months to study the local government, solicit public feedback, and see if a Home Rule Charter would be appropriate for the township. Osei said the GSC’s goal was to explore the ways a home rule charter could change the outcome of the pending sewer sale, add citizen participation through referendum, and add transparency to Towamencin’s operations.
Despite the length provided, if the NOPE candidates were to take the next step towards their goal, they would need to act swiftly in order to get the Home Rule Charter on the May ballot. They held four public meetings through Feb. 17 and a public hearing on March 1, where they issued a report with their findings, drafted the charter, and submitted for the ballot to be added for the May primary election.
"The charter was written with the intent to remove the ability to sell water, wastewater, and storm water utilities. In addition, the charter is meant to limit the expansion of existing local governmental power through greater citizen participation and transparency,” said the group. "All other Second-Class Township provisions will remain in place.”
Opponents of the GSC criticized their timeline, stating that it was impossible to study the local government over such a shortened period, while also claiming that conducting a study with an outcome already defined via a desire to establish a Home Rule Charter tainted any due diligence that the commission was required to perform.
Those opponents then banded together to create the No Towamencin Home Rule PAC
"After attending the Government Study Commission meetings and reading the home rule handbook from the State of Pennsylvania, we realized the Government Study Commission did not report the pros and cons of the current township structure versus changing completely to a Home Rule Charter,” said the group, in a joint statement to North Penn Now. "The study addressed only the sewer sale, so we came together and met weekly as a group to discuss the pros and cons of Home Rule ourselves, since the GSC focused on primarily one issue: to stop the sewer sale.”
What is a Home Rule Charter? And Can it Stop the Sewer Sale?
A Home Rule Charter affects municipal matters. It tosses out some state laws and transfers authority to a local constitution. If Towamencin goes to Home Rule, then it can basically do anything not specifically denied by the state constitution, the General Assembly, or the charter itself, according to WHYY.
A Home Rule Charter gives a municipality local control and local ordinances that are not hindered by state legislators. Home Rule municipalities can also set the property tax rate and the personal tax rate as well, which can be viewed as a major con by dissidents.
Additional features of a Home Rule Charter — which can be viewed positively or negatively, depending on one’s position — include providing power to local leaders without state oversight and providing the ability to surpass the state-set tax limit. Any changes to the charter require a referendum on a ballot, including new taxes or tax limits.
There are many Home Rule Charter municipalities in our region: Allentown, Philadelphia, Chalfont Borough, Horsham Township, Plymouth Township, Whitemarsh Township, Upper Providence Township, Norristown Borough, Cheltenham Township, Chester, Easton, Reading, and Scranton, to name a few.
There are also some counties in Pennsylvania that have Home Rule Charters, with Delaware County being the closest to us.
It’s unclear if a Home Rule Charter could be used to negate or overturn the sale of the sewer system. The GSC claims the Asset Purchase Agreement has clear "no fault termination" language that they and their solicitor believe is strong enough to terminate the sale with no penalty for either party. The group referred to page 52 of section 14.01 of the Asset Purchase Agreement claiming that once a Home Rule Charter becomes the governing authority of the township, the township could terminate the agreement with cause.
When asked to provide evidence of a Home Rule Charter being used to negate a municipal sale, Government Study Commission Vice Chair Jenn Foster pointed to Norristown as the closest example, where they used a referendum provision within their Home Rule Charter to petition to repeal the sale ordinance for the Norristown Municipal Waste Authority. In that instance, Aqua Pennsylvania backed out of the sale prior to the referendum hitting the ballot, so it’s unclear if the charter would have succeeded or led to a prolonged litigation period.
Osei provided a second example in Willistown Township — which is not governed by a Home Rule Charter — where the sale of the township’s sewer system failed despite having a signed contract with Pennsylvania Public Utility Commission (PUC) approval. While that shows that a municipality could back out of a pending sale, it does not show evidence that a Home Rule Charter would succeed.
Both the township supervisors and the No Towamencin Home Rule PAC contend they’ve received multiple legal opinions stating the charter would be unable to negate the sale, while expressing concerns that attempting to overturn the sale could lead to millions of dollars in legal fees at the cost of taxpayers.
"There are strong legal precedents against overturning contracts based on the passing of laws after the fact,” said the supervisors.
"We reviewed the Asset Purchase Agreement contract with five different attorneys,” said the No Towamencin Home Rule PAC. "Most of our legal sources didn’t want their name or firm revealed by doing a ‘legal favor’ for us, except one — Jay Glickman of Rubin, Glickman, Steinberg & Gifford, P.C. Per the five attorneys we’ve spoken to about this, any effort to stop the sale is not certain nor can it be cleanly executed without litigation.”
Despite the claims from the opposition, Osei maintains the Home Rule Charter would succeed, based on the opinion of the GSC’s solicitor.
"There have been no municipal attorneys to publicly put their name to the suggestion that the charter wouldn’t stop the sale, while the GSC solicitor has stated multiple times that their firm believes the proposed charter would stop the sale if adopted,” Osei said.
In addition to the argument over whether or not the sewer sale can be overturned, members of the No Towamencin Home Rule PAC have also voiced concerns regarding potential vulnerabilities the adoption of a charter could bring with it.
"Home rule municipalities are not bound by state-set tax limits,” said the group. "And even though the charter does not currently propose any changes to the tax limits, it does allow for them through future charter amendments, which is a power the current township does not have.”
Regarding the charter adding authority for initiatives and referendums, the group said they "believe it will result in a small fringe of residents and the loudest voices monopolizing the township’s agenda, causing possible referendum confusion, manipulation, and fatigue.”
"It is a common practice for petitioners to create carefully worded ballot initiatives that sound good, but in the end, have either unforeseen or opposite consequences,” said the group. "Whoever has the power to define the ballot question has the capacity to shape its outcome. The electorate cannot be expected to exhaustively analyze the issues normally handled by a representative government.”
In a statement to North Penn Now, the GSC reiterated that the charter was written in order to prevent the sale of the sewer system while maintaining all other existing Second-Class Township provisions.
"The proposed Home Rule Charter defaults its remaining provisions to Class 2 Township code; that is to say, there will be no changes in elected offices, no changes to financial procedures, no changes to the limitations on the rates of taxation, and no changes in general operating procedures,” said the GSC.
What Happens Next? What Happens if the Home Rule Charter Fails?
In the months since the Asset Purchase Agreement was signed, NextEra has since backed out of the deal and transferred the agreement to Pennsylvania America Water for $11 million less than the initial $115 million purchase agreement.
If the Home Rule Charter passes on Tuesday, the charter would be adopted, and the group would then work to overturn the sale of the sewer system, which still requires approval from the Pennsylvania Public Utilities Commission and is expected to be completed in mid-2024.
What happens once the sale is challenged is open to debate, as all sides of the issue posit different outcomes — none of which can be proven until they occur.
Township supervisors maintain that if the township were to retain the sewer system, sewer rates and property taxes would rise together. However, with the sale, the sewer rates would increase but they believe they could reduce or keep the property taxes level by maximizing the Homestead/Farmstead Exemption.
The GSC said that if the ballot initiative fails, the township will remain as is, and the sewer sale will proceed as per the contract. In doing so, the GSC contends that with Pennsylvania American Water at the helm, sewer rates would increase dramatically over time, and residents would have to switch from a flat fee to a metered fee in most cases.
"The township has published estimates based on Zone 1 Rates, and there is nothing contractually that would force PA American to ease the community into those rates,” said Foster.
Regarding apartment complexes, condominiums and homeowner associations — which represent nearly one-third of the township — there remains ambiguity within how those communities would be billed, particularly if the communities are unmetered and water and/or sewer in included in their fees or rent. PA American Water has stated that those communities would be billed based on overall water usage, and it would be up to those communities to determine how they wish to bill their residents.
"Condo fees and rent are largely based upon the size of the home, and it would be a significant financial burden to these types of communities to meter individual units,” said Foster. "The likely scenario would be a monthly assessment or rent increase, based on home size, so that the associations can pay a monthly sewer bill.”
The GSC contends that while the township would have to raise taxes in order to upgrade and maintain the sewer system, those increases would be less than then the rate increases from Pennsylvania American Water, and would end once the system is upgraded, as opposed to continuing in perpetuity with a private company.
No Towamencin Home Rule PAC said that should the Home Rule Charter pass, they will continue observe how things unfold.
"We will continue to attend all township meetings and will continue to communicate to voters and taxpayers to keep a watchful eye on future ballot initiatives, especially during primary elections,” said the group.
See also:
PA American Water to Take Over Towamencin Sewer Purchase Following Vote by Township Supervisors
Letter: Vote No on Towamencin Home Rule Charter in May Primary
Towamencin Home Rule Charter Headed to Ballot in May Primary
Group of Residents Voice Issues with Towamencin Government Study Commission’s Speed and Processes
Submission: Towamencin Government Study Commission Update
Towamencin Government Study Commission Discusses Schedule and Spending, Fills 1 Vacancy
Towamencin Residents Vote for Government Study Commission to Explore Home Rule Charter
What Towamencin Voters Need to Know About Ballot Question for Government Study Commission
Op-Ed: Stop the Sewer Sale, Vote Yes on Towamencin Government Study
Editorial: Why We Decided to Sell Our Sewer System
Despite Vocal Opposition, Towamencin Supervisors Sell Sewer System for $115M in Historic 4-1 Vote
Towamencin Supervisors Vote 4-1 to Advertise Sale of Sewer System for $115M, Final Vote May 25
Letter to the Editor: Vote No on Selling Sewer System
Residents Speak Out After Towamencin Supervisors Signal Intent to Sell Sewer System
Towamencin Supervisor Majority Says They’re in Favor of Selling Sewer System Despite Opposition
North Penn Says Proposed Towamencin Sewer Sale Would Have Minimal Impact on District
To Sell or Not to Sell: Towamencin Board to Decide Sanitary Sewer Fate in May
Towamencin Inches Closer To Possible Sewer Privatization With Feb. 11 Bid Deadline
Editorial: Selling the Sewer System Would Be Bad for Towamencin (and Elsewhere)
