NITTANY VALLEY WATER COALITION APPEALS THE TOLL BROTHERS DEVELOPMENT APPROVAL TO THE PA SUPREME COURT
May 30, 2017
FERGUSON TOWNSHIP – Nittany Valley Water Coalition members have directed our attorney to file an appeal to the Pennsylvania Supreme Court of the ruling by the Commonwealth Court that would allow the Toll Brothers’ Cottages Development to go forward.
The Commonwealth Court of PA ruled against our attempt to block this development on a technicality, not on the merits of the case, conclusively demonstrating that Pennsylvania courts use a double standard; they do not enforce the law equally and fairly.
The original March 2, 2015 “tentative PRD” approval and the November 16, 2015 “final PRD” approval by the Ferguson Township Board of Supervisors, were both adopted alongside an illegal “subdivision and lot consolidation” approval, in violation of Ferguson Township zoning ordinances, which are binding rules implementing the Pennsylvania Municipalities Planning Code (MPC) at the local level.
Under the MPC, Ferguson Township had two ways to legally change the zoning for 5.5 acres of Rural Agricultural land outside the Regional Growth Boundary/Sewer Service Area that the developers – Toll Brothers, under contract to land seller Penn State University – want to use for a large stormwater detention facility. The supervisors had to refer the application to the Ferguson Township Zoning Hearing Board for a variance hearing, to make specific findings that the developer met five “hardship” conditions for waiver eligibility. Or they had to rezone the parcel from Rural Agricultural to some other zoning classification eligible for conversion to Planned Residential Development zoning, which requires regional review and approvals. They did neither.
As explained to the supervisors in written reports by then Centre Region Planning Agency Senior Planner Autumn Radle, and then-Ferguson Township Planning & Zoning Director Maria Tranguch in January and February 2015, stormwater detention is not a permitted use of Rural Agricultural zoned land under Ferguson Township law. Residential housing development is not a COG-endorsed use of land outside the Regional Growth Boundary. Toll Brothers could not meet all five “hardship” requirements to be eligible for a variance, and their application was never referred to the Zoning Hearing Board for review.
Rural Agricultural land is not eligible for direct conversion to PRD zoning, and inclusion of the 5.5-acre parcel within the RGB through subdivision and lot consolidation required regional authorization through the Centre Region Council of Governments under the 2013 RGB/SSA Implementation Agreement.
Further, under Ferguson Township zoning law, Rural Agricultural land may not be rezoned for other uses in parcels less than 50-acres, to avoid fragmentation of arable land.
The Ferguson Township Board of Supervisors violated zoning procedures and substantive local zoning laws, and had their illegal acts reversed by Centre County Court of Common Pleas Judge Jonathan Grine in July 2016. Grine explicitly wrote that the supervisors’ and developers’ arguments were “essentially an attempted end-run around complying with the zoning ordinance applicable to the RA District.”
By order May 17, a Pennsylvania Commonwealth Court panel reversed Judge Grine’s order and reinstated the original Ferguson Township approvals, not based on the merits of the case, but based on plaintiffs’ failure to follow a different set of MPC procedures: those governing land use appeals, which require filing within 30 days of the Tentative PRD approval. Plaintiffs filed within 30 days of the Final PRD approval.
Pennsylvania Commonwealth Court judges have now clearly shown that they will allow elected supervisors and developers to violate MPC procedures and substantive local zoning law with absolute impunity, while holding concerned citizens fully accountable for MPC procedural errors committed during efforts to compel elected officials to comply with local and state law.
This double standard is just plain wrong.
The citizens of this region will not give up our fight to stop this development and protect our public water supply and regional agricultural land.
Further, we emphasize that the ClearWater Conservancy Slab Cabin Run Initiative to preserve 300 acres of farmland surrounding the threatened Thomas-Harter wells could be completely ineffective if this development upslope of the wells goes forward.
We will hold Ferguson Township Supervisor Steve Miller (who voted to approve this PRD) as well as Penn State University fully responsible if and when this development goes forward and our drinking water supply becomes contaminated.
Further, we highlight that Penn State University is willing to violate its own strategic plan that includes being good stewards of our natural resources, including protecting our water, all for the sake of profit on real estate. They have indicated to us that they are just the sellers and are not responsible for what happens after that.
Nittany Valley Water Coalition