Attorneys representing the residents of Ferguson Township and the township itself appeared in court Wednesday to argue the merits of a suit revolving around the proposed Cottages at State College development.
The arguments followed briefs submitted to the county Court of Common Pleas both supporting and opposing the land use appeal.
A motion to quash the appeal filed by the residents was denied in March, as county Judge Jonathan D. Grine ruled that the appeal was both timely and had standing.
According to documents filed in support of the land use appeal on May 27, arguments by the township and developer have mischaracterized the residents’ arguments, “attempting to set up a straw man to knock down.”
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The documents claim that residents have not argued that stormwater management facilities are not permitted in the agricultural zoning district, but rather the facilities are not permitted as a principal use in the RA district. They went on to say that the township and developer appear to acknowledge that the facilities in the RA district are “part and parcel of the planned residential district” — a district that is not permitted in the RA zone.
“The sheer size and scope of the stormwater management facilities are unquestionably of a character associated with the PRD, not the the rural agriculture uses of the RA district,” the documents said. “There is thus no basis for deviating from the general rule that accessory uses must be considered with the principal uses they serve and that the PRD-related ... facilities here are not allowed under the township zoning ordinance.”
The document also said the township and developer fail to address the residents’ argument concerning the township’s obligations under the Pennsylvania Constitution, saying the township and developer are not in compliance with state regulations relevant to the protection of public natural resources.
A brief filed June 24 by Springton Ponte LP, an interventor on behalf of Ferguson Township, opposed the appeal, saying the Board of Supervisors did not commit an “abuse of discretion or error of law in approving Springton Pointe’s final PRD plan for the project.”
The opposition brief states that the residents’ statement of facts is not supported by the evidence, arguing that a substantial portion of the proposed stormwater facilities are located within the R-4 zoning district, and the facilities within the RA zone are permitted as accessory to the primary use.
“The objectors’ characterization of the property as ‘rural farmland’ is inaccurate,” the documents said, saying the property is covered by scrub trees and brush and is immediately adjacent to a large residential complex — Tussey View Condominiums.
The documents also claim that objectors are unable to appeal the final approved plan since there was no appeal from the tentative approved plan submitted in October 2014, quoting the state municipal planning code that “the failure of anyone other than the landowner to appeal from an adverse decision on a tentative plan ... shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative approval.”
The documents also claim that the residents waived the claim that the final plan didn’t comply with the tentative plan, nor did the final plan deviate from the tentative plan.
Attorneys for both the residents and the township once again made their cases before Grine on Wednesday at the Courthouse Annex in Bellefonte before a packed courtroom.
Grine questioned the attorneys about whether a planned residential district is allowed in the RA zone, and if a zoning variance could have been obtained to allow such a development.
Marc Kaplan, attorney for Springton Pointe, said a variance would have been difficult to obtain, citing that a use variance is the most difficult variance to get under Pennsylvania law.
“We would have to prove either the R-4 or RA ground could not be utilized for any of the permitted uses allowed in the ordinance,” he said. “There’s no way to prove that you couldn’t build a smaller development on 22 acres, or put a farm on five acres.”
Jordan Yeager, attorney for the residents, said if a developer wanted to comply with zoning, there are only two choices — a zoning change or a variance.
“If you can’t get a variance, then you don’t get to develop how you sought to develop,” he said. “A lot of what we’re hearing is driven by the size and scope of what (the developer) is trying to do. If they had redrawn the property so it could fit in the R-4 zone, we wouldn’t have this case.”
Grine’s decision on the case is pending.
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.