Coalition to Appeal Ruling in Toll Brothers Case
May 30, 2017 8:45 AM
by Geoff Rushton
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A group of residents will appeal a recent Pennsylvania Commonwealth Court ruling that effectively allowed the Toll Brothers' Cottages development project in Ferguson Township to move forward.

On May 17, a Commonwealth Court panel issued a decision vacating a Centre County court ruling that the Ferguson Township's Board of Supervisors committed an error of law in approving Toll Brothers' final Planned Residential Development (PRD) plan for the Cottages at State College.

The ruling reversed an earlier decision by Centre County Judge Jonathan Grine denying a motion by Toll Brothers' subsidiary Springton Pointe, LP to quash a land use appeal filed by a group of 15 neighboring landowners, known as the Nittany Valley Water Coalition. The case was sent back to county court for an order quashing the appeal to be entered.

The final PRD plan was approved by the supervisors in November 2015, but since the plan was first brought forward in 2014, township residents have been vocal about concerns that construction and stormwater runoff would harm 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.

In a statement on Tuesday, members of the coalition said they have directed their attorney to appeal the most recent ruling to the state Supreme Court.

"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 statement said.

The Cottages is a proposed 264-unit development on 44 acres of land near the intersection of Whitehall Road and Blue Course Drive. The final PRD plan for the site 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 (RA). 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, which by township ordinance are not permitted on RA land.

The coalition said that the supervisors had two ways to address the zoning for the RA parcel under the Pennsylvania Municipal Planning Code (MPC), but did neither. They had to refer the application to the township Zoning Board for a variance hearing to determine if the developer met five hardship conditions for waiver; or they had to rezone to the parcel to another classification, which would require regional planning and approval.

The residents said Toll Brothers would not have met the hardship requirements, and that residential housing development is not a Centre Region Council of Governments-approved use of land outside the regional growth boundary. They also said that under township zoning ordinance, RA-zoned parcels of less than 50 acres cannot be rezoned for other uses.

"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," the coalition statement said. "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.'"

The Commonwealth Court ruling noted that the state's MPC 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.

The ruling said that MPC land development regulations required an appeal to be filed within 30 days of the tentative PRD approval in March 2015 and that it limits appeal by a party other than the landowner unless the final plan deviates substantially from the tentative plan. The coalition's appeal -- which argued that the board's decision was an abuse of discretion, and error of law and that it violated the state's Environmental Rights Amendment -- was filed with 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," the coalition statement said.

The residents added that the development could render ineffective ClearWater Conservancy's Slab Cabin Run initiative preserving 300 acres of farmland to protect source water for the Harter-Thomas wells. 

"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," the statement said.

Penn State, meanwhile, owns the land for the planned development, but says it entered a binding agreement with Toll Brothers in 2012 giving the developer the option to buy the property. The coalition said it will hold township supervisors and the university "fully responsible if and when this development goes forward and our drinking water supply becomes contaminated."

The residents said that in selling the property for residential development, the university is violating its own strategic plan, which includes as one of its five priorities, "Stewarding Our Planet's Resources."

"They have indicated to us that they are just the sellers and are not responsible for what happens after that," the coalition said.

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