MEDIA – A nonprofit group which assists children with intellectual disabilities and a local developer is seeking to compel a pair of municipalities to approve two zoning applications, which would be used to construct a residential facility.
Elwyn of Pennsylvania and Delaware of Elwyn and Rocky Run Development, LLC of North Wales filed suit in the Delaware County Court of Common Pleas on July 6 versus Edgmont Township and Middletown Township.
“Elwyn is the sole member of Sleighton School, a Pennsylvania nonprofit corporation. In 2018, Sleighton School was the legal owner of a tract of land consisting of approximately 280 acres located on the east and west sides of Valley Road, with approximately 105 acres in Middletown and approximately 175 acres in Edgmont (the Tract),” the suit states.
“In 2020, Elwyn sold a significant portion of the Tract to Middletown for use as open space, leaving what is now the ‘Sleighton Property,’ comprised of two developable contiguous parcels one in Middletown, containing 25.77 acres, and the other located in Edgmont, containing 51.59 acres (identified as Folio No. 19000000100). The current zoning of the Edgmont portion of the Sleighton Property is PRD-4 (Planned Residential Development), and the current zoning of the Middletown portion of the Sleighton Property is I-3 (Institutional).”
The suit continues that in 2019, as part of a plan to generate funds to benefit its charitable programs, Elwyn solicited proposals from developers regarding the Sleighton Property.
Elwyn ultimately executed an agreement of sale with Rocky Run Development, LLC (Rocky Run) dated June 19, 2020, which provided that Rocky Run would purchase the Sleighton Property, upon final approval by both Middletown and Edgmont of a development plan for the Sleighton Property.
Rocky Run desired to develop residential uses on the Sleighton Property, and the suit explains that the “municipal codes of both Middletown and Edgmont contain provisions governing the development of Planned Residential Development uses in each Township.”
“Elwyn and Rocky Run determined that the simplest strategy for obtaining municipal approvals to develop Rocky Run’s preferred development plan for the Sleighton Property was to propose amendments to the PRD provisions in each Township’s zoning ordinance, and to develop Rocky Run’s preferred development plan in accordance with those amendments, if granted. Elwyn and Rocky Run understood from the outset that while amending each Township’s zoning ordinance was the simplest strategy for obtaining approvals to develop Rocky Run’s preferred development plan, it was not the only strategy available to Elwyn and Rocky Run and that Elwyn and Rocky Run could apply for and win approval of Rocky Run’s preferred development plan, even without amendments to each Township’s zoning ordinance,” the suit says.
“Discussion with both Middletown and Edgmont regarding the development of the Sleighton Property began in July 2019. At that time, Elwyn and Rocky Run transmitted to each Township drafts of proposed amendments to the PRD section of each Township’s zoning ordinance and a proposed development sketch plan, which depicted a unified project that spanned the line separating the two Townships. On Oct. 23, 2020, after further discussions with both Townships, Elwyn submitted formal requests that both Townships adopt the Text Amendments.”
The Text Amendments, if enacted, would have “amended the PRD regulations in both Townships’ zoning ordinances to permit Elwyn and Rocky Run to develop a unified, residential housing project across the two Townships on the Sleighton Property, in the form of the project preferred by Rocky Run.”
Between 2019 and 2021, the Townships and their respective staffs and consultants issued numerous detailed review letters regarding the proposed Text Amendments and Proposed PRD Plan, and held numerous public and private meetings with Elwyn and Rocky Run to review and comment upon the proposed Text Amendments and Proposed PRD Plan.
On March 29, 2021, after providing the required public notice, the governing bodies of both Townships held a joint public meeting to learn about the proposed Text Amendments and Proposed PRD Plan and to provide the public with information regarding the proposed Text Amendments and Proposed PRD Plan.
“On Aug. 30, 2021, Elwyn again submitted formal requests to each Township that each Township adopt the Text Amendments, and provided amended proposed Text Amendments that responded to feedback received from the Townships. At any time after the March 2021 joint public meeting, the Townships could have taken action to adopt the proposed Text Amendments or to decline to adopt the proposed Text Amendments. Neither Township took action on the proposed Text Amendments at any time after the March 2021 joint public meeting. Rather, at the Townships’ direction, Elwyn and Rocky Run proceeded to prepare formal applications for approval of the Proposed PRD Plan in each Township,” the suit says.
“On Sept. 13, 2021 Elwyn and Rocky Run filed formal applications with both Townships for tentative plan approval of the PRD plan proposed by Elwyn and Rocky Run, along with controlling development documentation (‘PRD Applications’). The PRD Applications included (1) The Act 247 Referral (2) The proposed Development Plan prepared by Glackin Thomas Panzak; (3) The Project Development Standards (Site Constructions Design Standards) prepared by T&M Associates, (4) The Project Development Standards (Written and Graphic Design Guidelines) prepared by Glackin Thomas Panzak, (5) The Preliminary Traffic Report prepared by McMahon Associates, Inc., and (6) The Environmental/Demolition Summary prepared by EnviroSure, Inc. Elwyn paid all application fees required by the Townships in connection with the filing of the PRD Applications and all required notices and postings were given or made as required.”
Neither Edgmont nor Middletown informed Elwyn or Rocky Run, formally or informally, at any time, that the PRD Applications were deficient or incomplete in any way, the suit says, nor did the Townships inform Elwyn or Rocky Run they had failed to pay any required application fee for the PRD Applications.
The Townships then held two joint public meetings each, on Oct. 14, 2021 and Oct. 24, 2021, with regards to the applications and tentatively scheduled a third meeting for Nov. 30, 2021, but that third meeting never took place.
As of March 12, 2022, 180 days after the filing of the PRD Applications, “neither Township had issued an official written communication to Elwyn nor Rocky Run granting approval, granted approval subject to specified conditions, or denied the PRD Applications.”
The plaintiffs quoted a state law which provided that a governing body, within 60 days following the conclusion of the public hearing provided for in this article or within 180 days after the date of filing of the application, whichever occurs first, shall, by official written communication, to the landowner, either: “(1) Grant tentative approval of the development plan as submitted; (2) Grant tentative approval subject to specified conditions not included in the development plan as submitted; or (3) Deny tentative approval to the development plan. Failure to so act within said period shall be deemed to be a grant of tentative approval of the development plan as submitted.”
“The Townships never sought, and neither Elwyn nor Rocky Run ever granted, in writing or by oral consent during a hearing, any extension of this 180-day time limit. Therefore, the PRD Applications were deemed approved as of March 12, 2022,” the suit says.
For one count of declaratory relief, the plaintiffs are seeking the Court declare the rights, status and other legal relations of the parties by determining that the PRD Applications were deemed approved as of March 12, 2022 pursuant to Section 709(a) of the Municipalities Planning Code, and award any additional relief that the Court deems appropriate.
The plaintiffs are represented by George J. Kroculick, Robert L. Byer and David Amerikaner of Duane Morris, in Philadelphia.
The defendants have not yet obtained legal counsel.
Delaware County Court of Common Pleas case CV-2023-005781
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com