“All my means are sane, my motive and object mad.” Pennypacker v. Ferguson Township

“All my means are sane, my motive and object mad.” Captain Ahab, Moby Dick

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In the last week and a half, I’ve received dozens of emails about Pennypacker v. Ferguson Township. Ferguson and Centre Region citizens concerned about the short- and long-term impacts on our region from the Cottages luxury housing development want the highest court in Pennsylvania to rule on whether the former board violated zoning law. As I’ve written here previously, the Toll Brothers proposed development has been a mess. Citizens are right that the Supreme Court could clarify things by hearing the case. Will they? Who knows? The case has taken twists and turns and the board, to some citizens’ considerable disappointment did not file the answer many asked for. More on that below.

SOURCEWATER MAP
Draft of the Ferguson Township Sourcewater Protection Map. The proposed Cottages development (marked with a star) would be located about a mile and a half east of the Thomas-Harter Wells along the border of Harris and College Townships.

A few years ago, Penn State provisionally sold agricultural land to the Toll Brothers to build a planned residential development. As news stories, letters, and opinion pieces in the Centre Daily Times, a petition that started in 2015, Steady State College and Bailiwick News, the Nittany Valley Water Coalition, and now an encampment prove, residents are upset about sprawl, uglier views, and the potential damage to the Thomas-Harter well field. Some worry is certainly warranted. The Toll Brothers’ record shows they have violated the Clean Water Act.

 

Some township and regional residents filed a lawsuit against Ferguson Township in December 2015. Plaintiffs argued that the final land development plan was unlawful because there is “no basis for deviating from the general rule that accessory uses must be considered with the principal uses they serve and that the [planned residential development]-related … facilities here are not allowed under the township zoning ordinance.” In slightly clearer speech: zoned agricultural land can’t legally be converted into stormwater infrastructure for a development in another zoning district. The developers never applied for a variance but were granted the go-ahead by the sitting board. That, the plaintiffs argued, was an end run around the law. Judge Grine ruled in their favor in July 2016.

Springton Pointe then filed an appeal to the Commonwealth Court. They argued that the lower court was wrong because citizens hadn’t intervened at the time of tentative plan approval. The Commonwealth Court agreed and ordered the lower court’s ruling be vacated, giving the Toll Brothers the go ahead. But the plaintiffs have filed an answer to that ruling with the state’s Supreme Court and Springton Pointe has filed a countering answer. Will the Supreme Court hear the case? The wait begins.

Now citizens have written to my fellow supervisors and me, asking that we file an answer. They are asking us to intervene and request clarity on the zoning issue. They argue that the ruling puts the township in potential liability no matter our decision. If the board were to tell a developer that they cannot place stormwater infrastructure in adjacent agricultural land when we have allowed it before without a variance, could we be taken to court? If we allow such infrastructure again, will citizens sue us for violating zoning law? Or, if the Commonwealth Court’s ruling stands, can it be read as completely vacating the lower court ruling and thereby setting a precedent based on technical procedures and timelines instead of the letter and intent of zoning law? Will we have to modify our zoning to explicitly prohibit such uses? These are real binds. The Supreme Court could settle it one way or another and set statewide precedent. Alternately we can try to fix with a patch later, one that won’t apply across the commonwealth.

But there are two other practical and ethical issues of significance: one of recognition and procedural justice and one of the distribution of risks and benefits. The Commonwealth Court ruled in a way that places a burden on citizens that is very difficult to overcome. Springton Pointe has an army of lawyers with thousands upon thousands of hours of training and experience that is backed by a war chest of money. That gives them a de facto advantage to access and be recognized by municipal staffs and boards. It also enables them to run over the public and manipulate procedures to their advantage. The democratically-elected governments and their appointees are outgunned by design. The system is rigged in the favor of the developer who’s private interests buy people’s time to occupy the time and efforts of local government.

some_animals_are_more_equal_than_others__by_gasketfuse-d5bq5r1As Orwell might have observed, the legal and political framework makes a corporation more equal than real people. The design makes it easy for developers to capture boards and commissions. As Stephen Hempel writes, that can easily lead to “actions and inactions feed[ing] a forest where private interest trees grow tall, while the public’s needs stay small.” As Steven Biko said, “The most potent weapon in the hands of the oppressor is the mind of the oppressed.” With the mind of the government occupied by the developer, it can easily do its will. Citizens can hardly hope to keep up with such an apparatus. So it’s not just a de facto issue, it’s de jure as well through lots of access around planning.

This is a system where justice can be abused too easily. How are citizens to redress their concerns if their elected officials don’t do what’s right in the first place? Citizens unacquainted with the ins and outs of Byzantine land law have few options available to them: they have fifteen pawns and a queen lawyer (if they’re lucky) they have to hire onto the chessboard. Meanwhile a Fortune 500 company has a full suite of sixteen pieces. The Commonwealth Court’s decision simply shows how rigged the system is in favor of wealthy and distant interests. It grants corporations more recognition, more access to procedures, and more benefits and fewer harms. And here we are talking about a real estate corporation. Imagine fighting a gas pipeline with the power of eminent domain behind it.

And in a municipality with a Community and Environmental Bill of Rights that doesn’t recognize corporate personhood, all of this is doubly troubling. Our Home Rule Charter states, “corporate entities and their directors and managers shall not enjoy special privileges or powers under the law which make community majorities subordinate to them.” In principle, our township stands at odds with the status quo.

Private gain on the backs of the public raises an issue of risks and rewards. On use, the proposed Cottages will encroach on land best kept as open space and in agriculture. It has value in food production and soil, as habitat, and for the services it provides in water filtration. Agricultural production clearly comes with risks of its own, but they are manageable. They will not grow under any scenarios I know of. The same can’t be said of sprawl.

There also the long-term land and water impacts. While hydrogeological experts have assured me that this development is very unlikely to harm the Harter and Thomas wells, there’s also agreement that continuing to convert land into impervious surface gets us closer to tipping points that will be socially, economically, and environmentally costly. That burden will inevitably be placed on the backs of rate payers, not the developer. They will argue that we now have a monitoring well by the development. That’s nice insofar as it’s a good thing to do. But for whose advantage at this point? Theirs. They’ve greenwashed the whole thing and will take the green home.

The Cottages would bring more banal cookie-cutter housing. It would make a beautiful view ugly and boring. The residents’ peace of mind comes from that view. Yes, there are other housing developments and a church nearby. But we need limits that align with our values. What is the value of red-winged blackbirds lighting across the fields, sunlight pouring onto a rolling field, or that primal joy of walking along a woodlot and hearing the rustle of maple and oak leaves? No person in love with this world can seriously argue that black top, crummy roofing, and more traffic is of high value. Only a cynical greedy developer can believe that. Why does our law entitle them to foist their ugliness on us?

18952851_1286809068107431_8599286868003890304_n
This photograph is courtesy of the Centre Daily Times. It shows the view of the rolling farmland, a woodlot along the Musser Gap Greenway, and Tussey Mountain veiled in clouds in the background. Most of the view in this picture would become the proposed student housing development.

It’s the kind of housing that dumps more money into the pockets of distant shareholders while putting students more into debt. “But we will be providing taxes to you,” they say. Ah yes. That wonderful student tax base that pays so much into the long-term care of our community.

Don’t get me wrong, I work at Penn State and I work with incredible students. My peers across the university and many of the administrators I know are good, well-intentioned, and community-minded people. I don’t blame them much more than I can blame myself. As Wendell Berry says, we live in a system of waste. We live in a system whose dominant mindset runs on a treadmill of empty consumption, debt, cheap design, and the pitting of corporate interests against the beauty and integrity of our home, the land, and leaves all its excrement for someone else to clean up.

No. I blame people who should know better. I blame people whose decisions have profound impacts on our community but push up their bottom lines. I blame people who’ve decided that greed is a human right, that the costs are someone else’s to bear, and that the exploitation of communities and land is the way to “get ahead.” I blame people who’ve decided that the commons should be damned and the great men (and maybe women) of an Ayn Rand like corporatopia should forge the architecture of the good. Like Ahab, they use rational means to navigate to a wicked end. They’re driving the ship so they can harpoon the white whale.

Judge Grine’s lower court ruling could have halted that pursuit. He ruled that the previous Ferguson Board “committed an error of law by approving the final PRD plan.” Zoned agricultural land should not be turned into stormwater infrastructure for projects outside of that district. I believe the law was clear on this matter and the previous board erred. I say erred because, unlike some activists, I don’t see strong evidence of “collusion” as some have said. There’s plenty of evidence in plain sight showing that people made bad decisions rooted in what they thought were good intentions. But as the saying goes, “The road to hell is paved with good intentions.”

That leads me back to requests from citizens to file an answer that would ask the Supreme Court to hear the case. We held an executive session last week on this matter. I cannot discuss the particulars of legal decision-making on the part of the board. The board filed a letter that stated we have no position. I personally am not pleased, but it was the board’s decision to make and not one that any of us took lightly at all.

The Supreme Court will have to decide if it will hear the case. I, myself, hope they do. Ferguson’s people deserve rational means to achieve a good end.

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