State College

Motion to quash Ferguson Township appeal denied

A Centre County judge has denied a motion to quash an appeal filed by residents of Ferguson Township over the Toll Brothers’ Cottages at State College development.
A Centre County judge has denied a motion to quash an appeal filed by residents of Ferguson Township over the Toll Brothers’ Cottages at State College development. Centre Daily Times, file

A motion to quash an appeal filed by residents of Ferguson Township against the township Board of Supervisors was denied Wednesday, giving the residents standing to file a land use appeal.

The appeal was originally filed Dec. 16, according to court documents, by 15 residents of Ferguson Township. Barbara Pennypacker is listed as the lead plaintiff.

Ferguson Township supervisors on Nov. 16 approved the final planned residential development plan for the Toll Brothers’ Cottages at State College — a 264-unit development covering 32 acres at the intersection of West Whitehall Road and Blue Course Drive. The plan had come under fire several times by residents who were concerned the construction and development would threaten nearby drinking water wellfields.

A group calling itself the Nittany Valley Water Coalition announced on Dec. 15 that it would be filing suit against the township regarding the approval of the plan. The coalition includes “community homeowners and farmers working together to stop this destructive development project,” according to a news release.

The appeal filed by the residents claims they are concerned about the impact of the plan on their daily quality of life, businesses, properties, drinking water, health, traffic impact and their community. All the residents live within a half-mile of the proposed development.

In the background of the appeal, the residents state that the plan contains a stormwater management system primarily located on about 6 acres of land zoned as residential agricultural. This parcel is located outside of the regional growth boundary, conflicting with the Centre Region comprehensive plan by “expanding the RGB and converting agricultural uses to high density residential uses.”

The residents claim in the appeal that the plan violates the township zoning ordinance and municipalities planning code by allowing a use not permitted in the RA district.

The appeal also noted that the proposed development is located in the Harter-Thomas Wellfield zone 2 protection area. Though residents shared their concerns regarding the drinking water with supervisors, the appeal said, the township did not independently review or study the impact of the development.

“The plan is contrary to the public interest and the township’s approval of applicant’s planned residential development was arbitrary, capricious, an abuse of discretion and contrary to law,” the appeal said, adding that the plan is not compatible with the surrounding agricultural land uses and that the board failed to take the impact on the drinking water into consideration.

Ultimately, the appeal seeks to reverse and vacate the supervisors’ approval for the final development plan, asking that the court order the township to obtain an independent study to determine the impact the development would have on the drinking water supply and reconsider the application at that time.

A motion to quash the appeal was filed Jan. 26 by Springton Pointe LP, described as “the equitable owner of the property at issue in the appeal.”

The motion to quash was based on an issue of timeliness, saying there was a failure to comply with procedural and time requirements and that none of the appellants filed an appeal during the tentative plan decision process.

The tentative PRD plan was approved by the board in March 2015. The only issue to challenge in the final plan decision is if the final plan deviated from the tentative plan, the motion said.

“Since this appeal does not allege that the tentative plan deviated from the final plan,” the motion said, “but, rather, alleges defects in the tentative plan, the appeal is an untimely challenge to the tentative plan and must be quashed.”

The motion also argued that the appellants lack standing to appeal the final plan as they had not established they were “aggrieved” by the approval, the motion said, saying the allegations in the appeal relate to the tentative plan decision and were not relevant to the board’s consideration to approve the final plan.

Appellants have also not alleged that the final plan deviated from the tentative plan, the motion said.

A hearing was held at the Centre County Courthouse Annex on March 4 before Judge Jonathan D. Grine arguing the motion to quash. Attorney Ronald Lucas appeared on behalf of Springton Pointe while attorney Jordan Yeager represented the residents. Ferguson Township solicitor Joseph Green was also present.

Grine denied the motion to quash Wednesday, finding that the residents’ appeal was both timely and had standing.

Regarding the stormwater management on RA zoned land, the ruling found the “final plan’s failure to comply with a condition of approval constitutes a substantial deviance upon which a land use appeal is permitted to preserve property owners’ rights.”

The ruling also noted that residents met the requirements for being an “aggrieved party,” having both participated in the public hearings for both plans and are located within close proximity to the plan site.

Ferguson Townshp resident Kelli Hoover, who is listed as one of the appellants, said the ruling bodes well for her group and for the appeal.

“Ferguson Township and the Toll Brothers have known since early last year that they were trying to pass a plan that violated the zoning ordinance,” Hoover said Thursday. “They didn’t want to take the time to go back and get a variance for the parcel.”

For now, she said, she and her fellow appellants are waiting for the actual merits of the case to be heard.

Jeremy Hartley: 814-231-4616, @JJHartleyNews

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