MEDIA – The developer behind a building application and proposed demolition of two historic buildings on Park Avenue in Swarthmore has been granted permission to intervene in litigation brought by borough residents seeking to prevent such action.
Save Our Swarthmore, Shannon Elliot, Melanie Rodbart, Martha Perkins and Christopher Kenney filed the emergency petition in the Delaware County Court of Common Pleas on May 10 versus the Borough of Swarthmore and its Borough Council. All parties are of Swarthmore.
“Petitioners are a community organization representing residents of the Borough, i.e. SOS, as well as individual members of the community who have vested interests in the properties, the historic buildings and the Borough itself. The historic buildings which the application seeks to demolish appear in the Pennsylvania Historic Resource Survey compiled by the Pennsylvania Historical and Museum Commission, as well as the Historic Resources Survey for Swarthmore Borough compiled by the Delaware County Planning Department in 2001; indeed, the Borough’s Zoning Officer [William Webb] has already indicated that the historic buildings have ‘historic value’ under Swarthmore’s Zoning Code, a determination which has not been appealed. The properties are zoned as part of the Borough’s TC District,” the petition said.
The petitioners then submitted to Webb for his consideration certain formal requests for zoning determinations under the Borough Zoning Code, including but not limited to, that the application violates the TC District; that it violates several tenets of the Borough Zoning Code and would require variances for conditional use; that it contains impermissible residential uses throughout the ground floor and as its lobby is adjacent to the nearby sidewalk on Park Avenue, that this would also require a variance before any permits were issued.
Yet, Webb did not respond to the petitioners’ points, leading them to file an appeal to the Borough’s Zoning Hearing Board, for Webb’s refusal to issue zoning determinations and his actual issuance of the zoning permit. A hearing on the appeal is scheduled for July 2022.
According to the petitioners, the Borough Council cannot consider the application while an active appeal is pending before the Zoning Hearing Board, and believed that called for an injunction to prevent such consideration.
“There is a public interest in preserving the appearance of objectivity on the behalf of the Borough as failure to do so represents a violation of petitioners’ due process rights. Accordingly, restraining the Borough and/or the Borough Council in this limited instance to permit the Borough’s own appellate procedures relative to its own Zoning Code before the ZHB to resolve is undoubtedly in the public interest,” the petition stated.
The plaintiffs respectfully requested the Court grant, on an emergent basis, the foregoing petition, and enter an order substantially in the form submitted herewith.
However, following a hearing, on May 19, Delaware County Court of Common Pleas Judge John J. Whelan denied the petition.
UPDATE
On May 18, 110 Park Avenue, LLC and 112 Park Avenue, LP filed a petition to intervene in the case.
They seek to demolish all of the existing buildings on the property, consolidate the lots and develop them with a mixed-use development with retail uses and parking on the ground floor and multi-family residential units on the upper four floors.
“Intervenors desire to intervene in a determination of petitioners’ petition in order to challenge the legality and sufficiency of the petition, and in the event the petitioner is permitted to proceed to a determination by the Court, defend its interests in the property and its right to pursue conditional use approval with respect to demolition of the existing buildings on its property,” according to their petition.
That same day, Whelan granted their request to intervene in the lawsuit – though he additionally denied a motion to strike the plaintiffs’ petition entirely.
“Upon consideration of the petition for leave to intervene of 110 Park Avenue Owner, LLC and 112 Park Avenue, LP it is hereby ordered and decreed that the petition is granted and 110 Park Avenue Owner, LLC and 112 Park Ave, LP, shall be joined as an intervenor in the above-captioned matter. Upon consideration of the intervenors’ motion to strike, it is hereby ordered and decreed that the petition is denied.”
The plaintiffs are represented by Philip S. Rosenzweig and Kevin D. McGowan Jr. of Silverang Rosenzweig & Haltzman, in King of Prussia.
The defendants are represented by Robert W. Scott of Robert W. Scott, P.C. and Carl W. Ewald of the Law Offices of Carl W. Ewald, plus Donald T. Petrosa and Charles G. Miller of Petrikin Wellman Damico Brown & Petrosa, all in Media.
Delaware County Court of Common Pleas case CV-2022-003276
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com