Locals have been camping out at the Toll Brothers’ site for 10 days.
On the morning of June 3, they arrived to set up tents. They put up signs and lined Whitehall Road in crime scene tape.
The encampment was organized by the Nittany Valley Water Coalition, a group of residents whose aim is to protect the region’s drinking water from potential development threats.
For the past several years, residents of Ferguson Township and other nearby municipalities have been trying to stop the Toll Brothers’ student housing development slated to be built along Whitehall Road.
Although there have been twists and turns along the way, the development is not set in stone. But, the residents only have so many options left before it is.
In 2004, the Ferguson Township Board of Supervisors voted, 3-2, to rezone a 26.3-acre parcel, owned by Penn State, near the intersection of Whitehall Road and Blue Course Drive. It went from Rural Agricultural (RA) land to Multi-Family Residential (R-4).
The land was rezoned at the request of the university, said board Chairman Steve Miller, who voted against the rezoning.
“It wasn’t a strong philosophical opposition,” he said. “I just didn’t see any reason to do it.”
Penn State also owned a neighboring 15-acre plot that was already zoned for residential development.
Fast forward to 2012, and Penn State entered into an agreement of sale with the Toll Brothers, a housing development firm based in Horsham. The sale included 41 acres and a proposed $13.5 million gain for the university, according to information provided by Penn State.
Toll Brothers submitted a tentative plan for the Cottages at State College in October 2014, and the Ferguson Township supervisors approved it in March 2015.
Residents voiced their opposition to the plan.
In November 2015, the supervisors approved the final Planned Residential Development plan.
The 268-unit student housing development is set to occupy 43.5 acres.
Thirty-eight of those acres are zoned R-4, and 5.5 are zoned RA.
The final plan approval decision prompted a lawsuit from 15 families in Ferguson and College townships and State College borough, which has been working its way through the legal system for a year and a half.
The court battle
Residents filed suit against Ferguson Township in December 2015. The suit contends that placing a stormwater management facility, as the final PRD plan did, in the 5.5 acres of agricultural-zoned land is not a permitted use.
“Our contention was that because we were not building any buildings (on the RA land), even though it was outside the growth boundary, it was not in violation of our zoning ordinances,” Miller said.
Stormwater management, such as sewer or electricity, needs to be provided to service a development, Ferguson Township Manager David Pribulka said, saying the supervisors saw it as an accessory use to the development.
In January 2016, Springton Pointe LP, an intervenor on behalf of Toll Brothers, filed a motion to quash the residents’ land use appeal. That motion to quash was denied by county Judge Jonathan D. Grine in March of that year.
The land use appeal went before Grine in July 2016.
“Appellants contend this use is not permitted on land zoned RA,” Grine wrote in his ruling. “Appellees and intervenor contend stormwater facilities serving as an accessory to a primary use on land zoned R-4 can be constructed on land zoned RA, if all of the land is located within the same lot. The Court finds land zoned for RA cannot be used as an accessory for stormwater facilities serving a primary use which is not permitted in the RA District, and therefore the Board of Supervisors committed an error of law by approving the Final PRD Plan.”
Grine’s order reversed and vacated the supervisors’ approval of the development.
Springton Pointe LP filed an appeal in August 2016, and that case was heard by the Commonwealth Court of Pennsylvania in March.
The court ruled against the residents on May 17, vacating Grine’s decision and remanding the matter to the Centre County court to enter an order quashing the land use appeal.
The Pennsylvania Municipalities Planning Code mandates that there are no grounds for a final plan approval appeal when there was not an appeal of the tentative plan approval, unless the final plan deviates from the tentative plan, the Commonwealth Court said in its ruling.
The residents did not claim that the final PRD plan deviated from the tentative plan, the court said.
The residents “lost their right to challenge the Board’s interpretation of the Zoning Ordinance as allowing this use of the RA zoned land when they failed to challenge the grant of Tentative Plan approval,” the court ruled.
Kelli Hoover, one of the residents who filed the suit, said Nittany Valley Water Coalition members and other locals who oppose the development were depressed and despondent about the ruling.
“We feel like this little David going up against Goliath,” she said. “And it’s frustrating when citizens aren’t listened to by their municipal officials and don’t have much of a chance going up against big corporations in court.”
The court ruled on a technicality, not the merits of the case, said Hoover, a Penn State entomology professor who lives in Ferguson Township.
“The big problem right now is people see that as a technicality ...,” Miller said. “The reason for it is that if someone presents a development plan and it gets tentatively approved, they start putting a lot of money into it. So the law says if somebody wants to try to stop them, they have to do it in a certain amount of time or you’re ready to go forward.”
The Nittany Valley Water Coalition announced May 29 that the residents will appeal to the Pennsylvania Supreme Court.
The first step is to file a Petition for Allowance of Appeal explaining why the Supreme Court should accept the case.
There are only a few reasons the Supreme Court will grant a review. One of them is an issue of significant public importance, Hoover said.
“I can’t think of another issue that has been in our community since I’ve lived here that has been this important. It’s water,” said Ferguson Township Supervisor Laura Dininni, who opposed the development as a citizen before being elected to the Board of Supervisors in 2015.
The development site is about a mile away from the Harter-Thomas Wellfields, which supply State College area with the majority of its drinking water.
Besides the legality of the zoning, water quality is the other major concern of locals who oppose the Toll Brothers’ development.
Pam Steckler, a resident of Ferguson Township for more than 35 years, said the region is lucky to have such clean water, saying it’s the most precious resource.
“Why should we risk that?” she said.
Several years ago, David Yoxtheimer, consulting hydrogeologist for the State College Borough Water Authority, was asked to look into the potential implications of the development on the water authority’s wellfields and write a memo on his findings, he said.
The gist of what he found was that in a karst region — where there’s limestone and dolomite, collectively known as carbonate bedrock — there’s a potential for sinkholes to form, Yoxtheimer said.
They can form naturally, he said, but when development alters the land surface, it can potentially upset the natural equilibrium that exists.
The soils in the area also help filter out contaminants in surface runoff, Yoxtheimer said.
“If you breach that natural filtration that may exist, then suddenly surface contaminants can get in the groundwater without any of that natural filtration through the soils,” he said.
And if a sinkhole forms, he said, then there’s a “direct conduit” for contaminants to enter the groundwater system.
But those were only potential impacts, Yoxtheimer said. A lot of it had to do with how the site would be engineered, how much impervious surface there would be and things of that nature.
“You can never really say whether these are going to be actual issues until they actually occur,” he said.
The water authority took Yoxtheimer’s memo, along with its engineering consultants’ memo, to Ferguson Township, he said.
Miller said because it was a PRD plan, they were able to add negotiated restrictions on how the stormwater would be handled in the development.
“This stormwater detention basin system was far beyond what our ordinance required for stormwater at the time,” he said.
The township has since passed an upgraded stormwater ordinance, Miller added.
“When it comes to this specific project, we worked very closely with Ferguson Township, DEP, all of the water authority on developing a project that responds to all of the concerns that were raised and will implement controls and management practices that go beyond the current regulation,” said Charles Elliott, Toll Brothers Campus Living managing director.
The Cottages plan uses low-impact development technology. What’s been done with the project should ameliorate any concerns people might have, Elliott said.
Developing in a karst area is tricky, and there can be unforeseen circumstances even when the best practices are being used. So the risks have been further minimized, but that doesn’t mean there’s zero risk, Yoxtheimer said.
John Lichman, executive director of the water authority, said SCBWA is not as “overly concerned” about the Toll Brothers’ development as many people are.
“We’re always concerned with every development,” he said. “Every development can pose a potential, every new stormwater drain can be a problem.”
He said he wishes the attention given to this development was applied to all other developments.
To focus on one project, Lichman said, isn’t fair to the developer, township, water authority or customers.
“We have other wellfields that are right smack in the heart of development,” he said.
Some locals have turned to Penn State, hoping the university will come to their aid.
Many of the signs at the encampment are directed toward the university, including a long cloth banner that reads: “We are (waiting for) Penn State (to join the community).”
The university has other land it could sell to Toll Brothers, Hoover said.
“I absolutely think that Penn State has a very large responsibility to address this in any way that they can,” Dininni said. “I think the citizens have proven beyond any kind of doubt that this is something that’s really important to them.”
Hoover said they hope to stay on the Toll Brothers’ site until the university changes its mind and decides not to sell the land.
It’s still Penn State-owned property, Pribulka said.
“Penn State has no role in the use of the property and is not involved in the housing development,” according to information provided by the university. “Penn State entered into a binding agreement of sale based on the permitted use of the property as set forth in the ordinances of Ferguson Township. To now extract the university from the sales agreement would mean substantial penalties.”
Elliott said Toll Brothers is always willing to have a conversation with different parties.
“If there were other options presented to us that made sense for our company, we would be happy to have discussions,” Elliott said. “And I think it’s unlikely, but if one of those options ... presented to us is build in another location instead of here, we would consider it.”
Beyond its written statements, Penn State declined CDT requests to be interviewed for this story.
At this point, Ferguson Township staff is waiting for a determination and the litigation to run its course, Pribulka said.
The residents have 30 days from the Commonwealth Court’s decision to file their Petition for Allowance of Appeal, which would put that deadline in mid-June.
And then there will be more waiting to see whether the Supreme Court will take the case.
As with any other development in the township, Pribulka said, Toll Brothers is required to meet the conditions of the final approved plan. Once those conditions are met, the plan is recorded and the developer can secure all necessary permits.
There are still conditions of the final approved PRD plan that have not been met, he said.
“The conditions will still need to be met once all the court appeals have been resolved,” Raymond Stolinas, township planning and zoning director, said in an email. “The developer essentially can extend fulfillment of the conditions a total of three occurrences of 45 days if need be, but again, my assumption is that the clock to fulfill those conditions will not start again until all decisions on court appeals have been resolved.”
The uncertainty associated with the Toll Brothers litigation has also affected the Whitehall Road Regional Park, which is proposed to neighbor the development.
The Centre Region Council of Governments General Forum at its meeting last month adopted a resolution asking the Centre Region Parks and Recreation Authority to modify the regional parks loan from Fulton Bank for a fifth time, extending the deadline to draw the funds to June 2020.
For a while it seemed like the idea was to wait and see how the Toll Brothers situation resolves before proceeding with the park. Then it seemed like a switch was flipped, and that park plans would go forward in spite of the situation, Dininni said.
It’s hard to tell what’s going to happen with Whitehall park, Miller said.
If the Toll Brothers litigation is resolved quickly, then nothing will happen with the park before it’s resolved, Miller said. But if it’s not resolved quickly, he said he doesn’t know what will happen.
For Lichman, though the Toll Brothers situation started out “a little rocky,” he said he thinks in the long run it’ll be a net positive.
The Cottages gave the public a more heightened awareness to what’s happening in the area with development and open spaces, he said.
“People are in general starting to talk about it more, think about it more, plan things better and overall that’s going to have a general, in my opinion, positive outcome for the future so that I’m excited about,” Lichman said.
2004: Ferguson Township supervisors vote to rezone 26.3 acres of Penn State-owned farmland to allow for residential development
2008: Centre Region Council of Governments and Ferguson Township purchase 75 acres from the university for a regional park at $3,077 per acre (appraised at $15,000 an acre)
2011: Ferguson Township accepts a Penn State option to purchase an additional 25 acres adjoining the 75-acre plot
May 2012: Penn State enters into an agreement of sale with Toll Brothers for 41 acres along Whitehall Road for $13.5 million
September 2013: Penn State tacks on adjacent 5.5 acres, zoned agricultural, to Toll Brothers’ sale
March 2015: Ferguson Township supervisors approve tentative plan for Toll Brothers’ Cottages at State College
November 2015: Supervisors approve final Planned Residential Development plan for Cottages
December 2015: Residents file suit against Ferguson Township, aiming to reverse its decision to approve the final PRD plan
January 2016: Springton Pointe LP, on behalf of Toll Brothers, files motion to quash residents’ land use appeal
March 2016: Motion to quash the residents’ appeal is denied by county Judge Jonathan D. Grine
July 2016: Grine vacates supervisors’ approval of final PRD, saying they “committed an error of law”
August 2016: Springton Pointe appeals Grine’s decision
May 17: Commonwealth Court vacates Grine’s decision
May 29: Residents announce their intention to appeal Commonwealth Court’s decision to the state Supreme Court
June 3: Locals begin camping out at Toll Brothers site on Whitehall Road
Sources: Penn State, court documents, CDT reporting