State College

Ferguson Township supervisors ‘committed an error of law,’ judge says

A Centre County judge has ruled in favor of a group of Ferguson Township residents in a suit against the township, vacating a decision made by the Board of Supervisors regarding the Toll Brothers.
A Centre County judge has ruled in favor of a group of Ferguson Township residents in a suit against the township, vacating a decision made by the Board of Supervisors regarding the Toll Brothers. Centre Daily Times, file

A Centre County judge has ruled in favor of a group of Ferguson Township residents in a suit against the township, vacating a decision made by the Board of Supervisors regarding the Toll Brothers.

Ferguson Township supervisors in November 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 in December 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 effect of the plan on daily quality of life, businesses, properties, drinking water, health, traffic and the community. All the residents live within a half-mile of the proposed development.

A motion to quash the appeal in March was denied by county Judge Jonathan D. Grine, who ruled that that the residents’ appeal was both timely and had standing.

The suit went before Grine again on July 13, as both parties again argued their cases. Marc Kaplan, attorney for Springton Pointe LP — an intervenor on behalf of the Toll Brothers — argued that placing stormwater management facilities on land zoned agricultural was appropriate as the use constituted an accessory use for the primary development and not the development itself. He also argued that a variance would have been difficult to obtain, citing that a use variance is the most difficult variance to get under Pennsylvania law.

Jordan Yeager, attorney for the residents, stood by the argument that the stormwater management facilities are not permitted in the RA district, saying if a developer wanted to comply with zoning, there are only two choices — a zoning change or a variance.

Grine issued a decision Monday, ruling that “the Ferguson Township Board of Supervisors’ approval of the final planned residential development plan is reversed and vacated.”

According to the ruling, the township zoning ordinance sets out uses permitted in the RA zone. High density dwellings, such as the Cottages, are not listed as one of these uses.

“... It is clear that the accessory uses are expressly limited to operating solely in conjunction with a delineated primary use,” the ruling said. “Thus, stormwater management facilities located in the RA district must be serving in an accessory capacity to a primary use.”

The intent of the RA district includes several things, the ruling said, such as the preservation of agriculture, to limit development to agriculturally compatible uses and, importantly, to preserve the quality soils for crop and pasture use by limiting the conversion of cropland to nonagricultural use.

Stormwater management facilities in RA zones must serve as an accessory to one of the RA’s permitted uses, the ruling said.

“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,” the ruling said, “and therefore the Board of Supervisors committed an error of law by approving the final PRD plan.”

On Thursday, Ferguson Township Manager Mark Kunkle said there is a 30-day time period for an appeal to be considered. The Board of Supervisors have not yet considered an appeal, and he had no knowledge of Springton Pointe’s position on the ruling.

Kelli Hoover, who is named as one of the appellants, said Grine made the right decision to overturn the development approval, adding that the ruling means the Toll Brother’s Department of Environmental Protection permit is in error and not valid either.

“Best thing Ferguson Township could do is not spend anymore taxpayer money on fighting this suit because the judge ruled that the supervisors clearly violated their own zoning ordinances,” she said in an email Thursday. “Penn State would then be well served to declare the deal with Tolls null and void since they do not have PRD approval and their DEP permit is invalid.”

Jeremy Hartley: 814-231-4616, @JJHartleyNews

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