The hydra returns as the Toll Brothers win in Commonwealth Court

Ferguson Township, depicted in red, is a Home Rule municipality in southern Centre County. We are about 18,000 people on about 50 square miles of mixed urban, suburban, agricultural, and forested land. The Cottages development discussed in this post would be located along the central eastern border of the township with State College borough. Image courtesy of Wikimedia.

As you may know, a Centre County Court of Common Pleas judge’s ordered that a lower court decision be vacated regarding The Cottages, a Toll Brothers development in Ferguson Township where I’m a supervisor. The original lower court decision found that the previous board had “committed an error of law” in regard to the planned residential development (PRD) plan for the Cottages in November 2015.

As the Centre Daily Times reports, “A group of residents filed an appeal against the board” and Judge Grine ruled last July that the supervisors had “committed an error of law by approving the final PRD plan.” The Toll Brothers appealed the ruling in August and that appeal was argued March 6. Now, the Commonwealth Court has ruled

“The (Municipalities Planning Code) expressly mandates that no appeal from final approval of a PRD plan is permitted where an appeal from tentative plan approval was not taken, except where the final plan deviates from the tentative plan. Objectors did not allege that the Final PRD Plan deviated from the Tentative Plan in their Notice of Appeal and, as a result, they failed to state a claim for which relief can be granted.” This ruling has raised the issue again and raised the temperature of many people in Ferguson Township and across the Centre Region.

Part of why I ran for the board was because of The Cottages–or as I’ve called them “The Boxes”–in particular. As I’ve written before,

I will not concede this development’s inevitability until it happnes. At the same time we need to work toward making it not just less bad, but an actual improvement of the land. This will only happen if we foster and nurture it towards ecological and sustainable design. Work to make every available nook into a water-filtering, air-scrubbing, thermally-regulating, and habitat-restoring niche. Then, let’s move all this initiative and momentum into future ordinances in Ferguson and the surrounding area to build a case for cautious, steady, and biophilic development.

What does that mean today?

The Cottages are a new domino that will initiate more pressure on the growth boundary and the Harter Thomas well field and Slab Cabin Run. They do not, however, present an imminent threat to the wells today. They present a looming longer-term threat, a threat that is in a way more insidious. I want this development stopped but I want to be honest in my fight.

 If some of us act like Chicken Littles as one former board member labeled activists, I believe we are likely damaging ourselves. If members of the public and activists continue to make such arguments, they will be butting up against experts whose research and monitoring does not support activist positions. As such, those experts’ professional ethical codes will not support activist positions. If we want the support of the authorities and experts (recognizing that may be an “If…” for some people), then we need to use their position to our advantage and vice versa.

It would be wise in the near-term and the long-term to state our message in ways that respect expertise and uses it for long-term precautionary policy and planning. I urge you all to push Penn State to reject the Cottages because of its long-term implications as placing more pressure on the growth boundary. More pressure makes reaching a tipping point more likely. Let’s not get close. Therefore, please ask the university to place the land between the Whitehall Road and Route 45 into a long-term easement, advanced low-impact experimental farm for education, research, and production, a passive recreation or nature education, or some combination thereof.

First, over the last 20-24 months, consulting hydrogeologists and members of the State College Borough Water Authority board have said the Boxes…err…the Cottages are not an imminent threat to water quality. These voices include two hydrogeologists, members of the water authority board, and physical plant staff from Penn State. Each of them have said in one way or another that potential runoff of gas, glycol, antifreeze, fertilizers, and herbicides and pesticides from the PRD are not drastic increases within the wells’ proximities to warrant halting this project because of this project alone. Some of them have called it “hydrogeologic bulls###,” others brushed it off, and some said that it’s really about the long-term. The short-term stresses differ from current agricultural uses, but are not unmanageable. Storm water engineers have stated that the stresses are possibly more manageable through the (zoning-violating) proposed storm water retention and impoundment basins that exceeded the existing storm water ordinance at the time of submission and meet or exceed our current ordinance even if they are placed (illegally and misguidedly) in land zoned agricultural land.

Second, the Harter Thomas wells are not pristine. I’ve talked with a number of people who basically laugh at the idea that they are. Those wells have high amounts of sediment and require lots of filtration. They are very productive but not pristine. Current filtration technology copes with the existing and projected pressures insofar as tested chemicals are concerned. Additionally, the upgrade to the SCBWA plant will do even more to break down and filter out contaminants. In a sense, the SCBWA is ahead of the game. Can the wells and filtration plant take a catastrophic impact like a tanker spill? No. But the Cottages is no such thing. A catastrophic event gets to an integrated response from the region’s public safety apparatus.

Third, if members of the public, activists, and elected officials continue to argue from the previous premises about imminent threats and mischaracterized well quality, I believe they won’t gain traction with the planning agencies, the authorities, nor the local governments that are advised by them. Expertise matters in this community much more than it does in many others. The level of education and scientific literacy among staff and board members is very high compared to the general public of the United States, in no small part because of the presence of the university.

I believe it would be wise in the near-term and the long-term to state our message in ways that respect expertise and uses it for long-term precautionary policy and planning. As I’ve written before, the Cottages are a domino that is getting lined up on the growth boundary, a new head of the hydra of development and developers who are always looking for more ground to eat up and turn into cookie-cutter housing. Jeff Kern wrote in the paper, “Obviously, the more surface uses, from commercial and industrial to residential to transportation, the more chance there is for contamination. We don’t know when or how much pressure will bring about that tipping point. The risk of groundwater pollution will be much greater if a coordinated and thorough assessment is not conducted prior to making a land use decision.” This is really important.

That argument tells us to think long-term, institute precautionary policies, and monitor (presumably for planning and enforcement). So far, Ferguson Township has been doing all three since I’ve gotten there. As you’ll see in the coming weeks, we will be voting on our official map which includes a long-term consideration of the land surrounding the Cottages, but the growth boundary more generally. In my view, we should tend toward dense development, low-impact and public transit, ag, forest, stream, and meadow/old field conservation, supporting renewable energy, and low-impact storm water management and passive recreation. In current and ongoing policy, we have strengthened the storm water ordinance and are developing a source water protection overlay for zone 2. If memory serves, I’ve requested language for the source water ordinance that is based in the precautionary principle (PP). The PP places the burden of proving no or least harm on the developer, not the inverse which places the burden on the public.

As I said above, I believe we should state, in the near-term and the long-term, a message that respects expertise and uses it for long-term precautionary policy and planning. I urge you all to push Penn State to reject the Cottages because of its long-term implications as placing more pressure on the growth boundary. More pressure on the growth bounary makes reaching a tipping point more likely. Let’s not get close. Therefore, please ask the university to place the land between the Whitehall Road and Route 45 into a long-term easement, advanced low-impact experimental farming for education, research, and production, a passive recreation or nature education site, or some combination thereof. I know for a fact that there is support for such moves that can serve the common good.