Updates from a Chester County Court Battle of People v. Toll Brothers

Via Neighbors for Crebilly:


Crebilly Farm in Westtown Township is one of the last large expanses of unspoiled, unprotected open space in eastern Chester County, Pennsylvania. It’s also land on which part of the Battle of the Brandywine was fought on September 11, 1777, with Hessian Jaegers – who were attempting a flanking maneuver of the American lines – taking artillery fire from the American position at Sandy Hollow near the Birmingham Friends Meetinghouse.

Yet despite this land’s historical importance, Toll Brothers has proposed a huge 317 unit housing development on these hallowed 325 acres where our forebears fought and died for our freedom.

UPDATE – Sept. 15, 2018

As you know, Neighbors for Crebilly has been permitted by Chester County Common Pleas Court to intervene in Toll Brothers’ appeal of Westtown’s denial of their conditional use application. Oral arguments in this appeal will made this Monday, September 17th at 1 pm in courtroom #1. Please join us if you can.

A quick word about Toll’s legal arguments which, as you can imagine, mock reality. Their lawyer, Greg Adelman, actually argued in a recent brief to the court that the Environmental Rights Amendment should not be applied to the “conditional use process,” a bizarre line of argument to say the least, and that our legal brief should be quashed. What Toll would have the court believe is that laws passed by the PA state legislature – including the PA municipal planning code of which the “conditional use” process is a part – must not be examined or questioned in terms of their impact on the environment.

In other words, the legislature, according to Toll’s lawyer’s flawed reasoning, can pass any law it chooses regardless of the harm it causes the environment, and the courts must not weigh in on those laws.

But outside Toll’s time-space distortion bubble, Courts strike down unconstitutional legislation all the time. As this conditional use application from Toll Brothers would permanently impair environmental and historic resources at Crebilly Farm, the Environmental Rights Amendment must take precedence over the conditional use process since the state Constitution supersedes all laws passed by the legislature.

That’s why the process of amending the constitution is so onerous: the amendment must pass the two legislative houses in two consecutive terms and then be approved by voters. Therefore, the unanimously-passed Environment al Rights Amendment (Article 1, Section 27) of our state constitution, outweighs  laws passed by the legislature. This amendment guarantees environmental protection for allpeople in the Commonwealth, including generations yet to come. So it is plainly ludicrous for Adelman to argue that the E.R.A. must not be considered in the conditional use process.

It was also curious that Adelman would cite as support for his argument any case from Commonwealth Court regarding the Environmental Rights Amendment since, in 2017, the PA Supreme Court threw out the Commonwealth Court’s three part “Payne Test” which had been that Court’s method of ignoring environmental protections afforded state citizens under the Constitution. Writing last year for the majority in Pennsylvania Environmental Defense Foundation vs. the Commonwealth of Pennsylvania, “Justice Christine Donohue said the prior interpretation of the amendment, which included a 3-part legal test and [which] was in place for four decades, ‘strips the constitution of its meaning.’ The opinion clearly defines the role of the state as trustee, which the court said is associated with fiduciary responsibilities.”  (Quoted from PA State Impact)

Unfortunately for Adelman’s argument, the Pennsylvania Environmental Rights Amendment occupies higher ground than the conditional use process which is merely part of a set of laws which are informed and governed by our state constitution.