On January 18, 2013, the Honorable David F. Bortner of the Chester County PA Court of Common Pleas issued an opinion and order reversing the grant of a waiver of subdivision to PR New Garden/CHESCO Limited Partnership and PR New Garden Limited Partnership (PREIT) by the New Garden Township Board of Supervisors. PREIT sought the waiver of subdivision in order to create condominium units on the property for the development of the proposed Walmart, Kohl’s and Wawa. On November 14, 2011, a former New Garden Board of Supervisors had granted the waiver by a 3-2 vote, based upon wording in a court-approved settlement agreement between New Garden and PREIT.
 
 
That vote followed the 2011 municipal election which would change the makeup of the Board of Supervisors the following January. Interested residents challenged the vote, and following the seating of the new Board in January, the Board appointed Vincent M. Pompo of the West Chester law firm Lamb McErlane PC to support the residents’ position that the waiver decision was not properly based upon the settlement agreement. Subsequently, the Board appointed Mr. Pompo its full Solicitor. 
 
 
The Court addressed two issues: first, whether the residents had legal standing to appeal the waiver; and second, whether the settlement agreement provided a legal basis for the waiver.
 
 
On the standing issue, the Court found that the residents did have a “substantial, direct, and immediate interest” in the matter, and therefore have standing. “The Judge wisely found that since this land use matter arose from a settlement agreement, if the neighboring residents did not have standing, then land use actions taken between the Township and PREIT under the settlement agreement would escape judicial review”, noted Pompo.
 
 
Regarding the merits, the Court found that the settlement agreement did not authorize the grant of a waiver of subdivision procedures in order to create condominium units on the property. The Court carefully reviewed the precise terms of the settlement agreement, rapidly developing case law concerning the proper scope of land use settlement agreements, and properly determined that the settlement agreement did not, in fact, waive the procedural requirements for processing a subdivision request.
 
 
“While at first blush this may appear to be a loss for the Township, in actuality it is a win in vindicating the efforts of the present Board and the residents to ensure that the proper rules regarding this development are followed”, said Pompo.
 
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Contact:
Vincent M. Pompo, Partner
Lamb McErlane PC
vpompo@lambmcerlane.com
610.701.4411