PHILADELPHIA – The Borough of Norwood argues it’s not responsible for an alleged $1 million lost by a Delaware County builder when it refused to approve development for 18 acres of land that the builder had purchased, saying that the planned development is forbidden by both federal and state law.
DB Enterprises Developers-Builders, Inc. of Springfield first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on May 17 versus the Borough of Norwood.
“DBE is a well-established builder and developer of housing throughout Delaware County and has successfully completed many projects, including those providing high quality housing for low – and moderate-income families. Sometime in 2005, DBE purchased equitable ownership of a site consisting of 18.1 acres of land formerly operated as a sewage treatment facility by the Muckinipates Sewer Authority. The site was located within the Borough’s Townhouse Residential zoning district,” the suit said.
“Plaintiff planned to build 98 townhouses on the site. Because the homes would be fairly-priced and rented and/or sold without improper discrimination, plaintiffs anticipated that the homes would be occupied by a diverse group of residents, including a substantial number of Blacks and other members of non-white communities. Plaintiff submitted a Preliminary Plan for Subdivision and Land Development of the site to the Borough and its Planning Commission on April 18, 2006.”
Despite submitting a comprehensive plan, DBE’s application was denied in September 2006 and the plaintiff filed an appeal in the Delaware County Court of Common Pleas. Four years of litigation over the appeal followed.
“Under the terms of the settlement, DBE agreed to a further reduction in the number of townhouses to be built on the site, from 96 to 80 units, and the provision of additional parking. The Borough agreed not to withhold approval of a final plan unreasonably,” the suit stated.
“On Sept. 7, 2010, DBE duly submitted plans to the Borough in full compliance with the terms of the settlement. Despite its purported agreement with plaintiff, which had been approved by the Court of Common Pleas, the Borough arbitrarily refused to review the plans submitted by plaintiff or to issue any permit or approvals. Accordingly, DBE filed a motion to enforce the settlement with the Delaware County Court of Common Pleas.”
After further years of litigation and dispute over the alleged “incompleteness” of the plan as judged by the Borough, the Borough denied the plan once again in December 2013.
“The Borough’s written decision of Dec. 10, 2013 raised purported issues never before identified by the Borough, including a purported failure to obtain permission for the construction of the site’s access road, the lack of ‘secondary access,’ the need to disconnect an old gas line and install a new one, and the need to document the lack of environmental concerns,” per the suit.
The plaintiff then submitted concepts to address each of those concerns in turn, but say that doesn’t explain the prior denials it received.
“None of these newly-created issues established valid reasons for further delay in compliance with the Delaware County Court’s 2010 and 2011 orders directing approval of DBE’s plans and permitting the development to begin. Accordingly, DBE filed a petition for contempt against the Borough, which remains pending. Notwithstanding the impropriety of the Borough’s newly-created obstacles to approval, plaintiff proceeded to address each of the Borough’s concerns. DBE’s supplemental environmental investigation identified a small amount of sludge in an area of the site, apparently left from the old sewage treatment operation. DBE prepared a detailed plan for removal of the sludge and agreed to undertake the removal at DBE’s expense,” the suit says.
“Since 2014 through the present day, plaintiff has repeatedly requested the Borough to approve the plans or to take the action on them that would enable it to pursue a procedural remedy. Despite these requests, and despite plaintiff’s agreement to meet all of the Borough’s concerns, the Borough continues to deny approval for the development of the site, which remains vacant. Plaintiff has incurred more than $1 million in expenses and has sustained lost future revenue, due to the efforts to meet the Borough’s demands and the Borough’s arbitrary refusal to approve development of the site or afford plaintiff a procedural remedy.”
UPDATE
The Borough filed an answer which denied the substance of the complaint on July 16, accompanied by 23 affirmative defenses.
“Plaintiff’s complaint fails to state a claim upon which relief can be granted. Plaintiff has no jurisdiction under the Fair Housing Act or under 42 U.S.C. Section 1983 on the facts alleged. Plaintiff’s complaint is barred by the Rooker-Feldman doctrine. Plaintiff’s case is not ripe for decision by this Court under any federal law while it remains pending in the Delaware County Court of Common Pleas. Plaintiff has failed to exhaust its administrative remedies,” the answer stated.
“Plaintiff is not a real party in interest and has no standing to pursue the claims set forth plaintiff’s complaint. The claims set forth in plaintiff’s complaint are barred by the applicable statute of limitations. Plaintiff has no cause of action under the Fair Housing Act, 42 U.S.C. Section 3601, et.seq. Plaintiff cannot develop the property, as plaintiff has a piece of landlocked property with environmental concerns that have not been addressed, a gas pipeline that needs to be addressed and no access or emergency access as required by law, therefore, plaintiff’s pursuit of approval for construction and development of this property is essentially an impossibility under local and state law.”
For counts of violating the Fourteenth Amendment to the U.S. Constitution, the Fair Housing Act and 42 U.S.C. Section 1983, the plaintiff is seeking an award of costs, actual, compensatory and general damages, attorney’s fees, such interests and other costs available under the applicable law, injunctive relief, including but not limited to an order that the Borough grant all approvals and permits necessary to allow plaintiffs to proceed with the development of the site under appropriate conditions, such other relief that the Court deems just and equitable, and a trial by jury.
The Borough further argued that the plaintiff has failed to comply with the requirements of the Pennsylvania Municipalities Planning Code.
The plaintiff is represented by Gerald J. Williams of Williams Cedar, in Philadelphia.
The defendant is represented by Robert P. DiDomenicis of Holsten & Associates, in Media.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-02242
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com