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Pennsylvania Supreme Court Denies Petition for Appeal on Toll Brothers Development

by on November 13, 2017 10:53 AM

The Pennsylvania Supreme Court last week denied a petition by a group of residents to hear an appeal in their lawsuit over a planned Toll Brothers student housing development in Ferguson Township.

The court's decision brings to an end the lawsuit first filed in 2015. But members of the Nittany Valley Water Coalition say they aren't finished efforts to convince the developer to build somewhere other than the 43.5 acres of land near the intersection of Whitehall Road and Blue Course Drive.

"We are disappointed about the PA Supreme Court decision not to hear our appeal, but it was expected," said Kelli Hoover, one of the 15 neighboring landowners who filed the lawsuit. "We are still supporting an alternative site for Toll Brothers to build student housing."

Penn State entered a binding agreement in 2012 to sell the land to Toll Brothers for $13.5 million, contingent on approved use of the land by the Ferguson Township Board of Supervisors. While the residents have awaited a decision from the Supreme Court, they have had ongoing talks with Toll Brothers and Penn State about a possible alternative site for the 264-unit development called The Cottages.

Over the summer, a Toll Brothers representative expressed interest in one of the Penn State-owned sites suggested by the coalition, a parcel located off of West College Avenue in front of the Penn State Golf Courses. Since then, the developer has been studying the site for feasibility.

Hoover said the residents are meeting with Toll Brothers' vice president of apartment living on Tuesday to discuss the proposal.

"We hope to know more about Toll Brothers plans after that meeting," she said.

A tentative plan for The Cottages was first brought to Ferguson Township supervisors in October 2014 and approved in March 2015. A final plan was submitted that month and a revised final plan was approved in November 2015.

But after the proposal first came to the board, some township residents have been vocal about concerns that stormwater and construction runoff would harm Slab Cabin Run and the nearby Harter-Thomas well fields, the source of drinking water for the majority of homes served by the State College Borough Water Authority, which provides water to the Centre Region.

Coalition members have said a prominent swale on the site could carry pollutants into the water supply and existing sinkholes and karst rock formations on the site were further cause for concern.

Toll Brothers and Penn State, which has no involvement in the development beyond the planned land sale, said the site has undergone extensive testing and that the development plans meet or exceed local and state stormwater management regulations.

The final Planned Residential Development plan for the site submitted by Toll Brothers subsidiary Springton Pointe LP included three parcels. Two totaling 38 acres were zoned R4 for multi-family residential use and the third 5.5-acre parcel is zoned rural agricultural. The plan included a subdivision and lot consolidation that joined part of the R4 with the RA, but left the underlying RA zoning for the 5.5 acres. The RA portion remained excluded from the PRD and was to be used for stormwater management facilities.

Residents appealed approval of the plan to the Centre County Court of Common Pleas on the grounds that the board's decision was an abuse of discretion and error of law and that it violated the state's Environmental Rights Amendment.

Toll Brothers/Springton Pointe argued in January 2016 that the appeal should be quashed because the residents did not argue that the final PRD plan deviated from the tentative plan, the latter of which they did not appeal from. The residents countered that the tentative plan required the final PRD plan to comply with all township zoning ordinances. Because it did not, they argued, it constituted a deviation and so the appeal was timely.

A judge denied the motion to quash and in July 2016 ruled that the supervisors committed an error of law in approving the final PRD plan, reversing the supervisors' approval. Toll Brothers appealed that decision in August 2016.

In May of this year, a Commonwealth Court panel vacated the Centre County court's decision and reversed the ruling denying Toll Brothers' motion to quash. 

The Commonwealth Court ruling noted that the state's Municipal Planning Code gives authority to local governments to establish conditions and standards for the development of PRDs that can override traditional zoning controls for larger developments. It also sets a two-part procedure for approving a tentative plan and a final plan.

A memorandum with that decision said the critical step was at the tentative approval.

The MPC also limits appeal by a party other than the landowner unless the final plan deviates substantially from the tentative plan. The residents did not argue the final plan deviated from the tentative plan, the Commonwealth Court filing stated, but rather that allowing stormwater management on the RA parcel violated zoning and the MPC and usurped the zoning hearing board's authority by granting a de facto variance.

The residents raised the issue of deviation between plans after Toll Brothers' motion to quash. The Commonwealth Court panel ruled that the residents waived their right to raise the issue by failing to raise it in their notice of appeal. Even if the issue had been sufficiently raised, the motion to quash the appeal would still be granted because the residents' claim is dependent on the supervisors' interpretation of the zoning ordinance related to stormwater management when they approved the tentative plan. 

The residents would have had to challenge the board's tentative plan approval, the Commonwealth Court ruling stated.

In June, coalition members began camping on the property in protest and the encampment remained for 127 days. Penn State posted "no trespassing" signs on the site in July, and after several communications with coalition members, protestors were evicted from the site on Oct. 4.

A Penn State spokesperson said that the encampment violated university policy and that the school had received notice from the township of ordinance violations. 

The university has leased the land to a local farmer to make use of until issues with the land sale are worked out.



Geoff Rushton is managing editor for StateCollege.com. Contact him at geoff.rushton@statecollege.com or find him on Twitter at @geoffrushton.
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