Orphans Court rules that East Caln portion of Kardon Ponds may proceed

Judge Platt has issued her ruling that the Millrace portion of Kardon Ponds community does not require Orphan's Court approval. Read her decision below.

IN THE COURT OF COMMON PLEAS

CHESTER COUNTY, PENNSYLVANIA

ORPHANS' COURT DIVISION

IN RE: COUNCIL OF BOROUGH OF DOWNINGTOWN

1511-1629

AND NOW, this 17 day of November, 2011, upon

consideration of the Petition of the Borough of Downingtown, J. Loew & Associates, Inc. and Progressive Housing` Ventures, LLC for Declaration that no Orphans' Court approval is required for the utilization of certain real property retained in the Borough, the response thereto, and after oral argument, it is hereby Ordered that the Petition is granted. No approval by the Orphans' Court is required, as the Donated or Dedicated Property Act is not implicated.'

BY THE COURT:

Katherine B. L. Platt, J.

Petitioners J.Lowe & Associates, Inc. and Progressive Housing Ventures, LLC own 7 acres of property in East Cain Township. It is undisputed that the 7 acres is land that has not been donated or dedicated for the public use. The Borough of Downingtown has agreed to grant Petitioners two easements: one to discharge stormwater into an existing pond located in an area dedicated to the public, known as Kardon Park, and on to perform improvements and environmental remediation.

Petitioners and the Borough contend that Orphans' Court approval is not required for the grant of the proposed easements.

The Orphans' Court has jurisdiction to settle disputes concerning a municipality's decision to sell or discontinue use of dedicated or donated property.

Donated or Dedicated Property Act ("DDPA"), 53 P. S. §§3381-3386. Section 3384 of the DDPA, provides that when the original use of a particular property held in trust as a public facility is no longer practicable or possible and has ceased to serve the public interest, the municipality acting as trustee of the property may apply to the Orphans' court of the county in which it is located for appropriate relief. The court may permit the trustee to-

(1) Substitute other lands or property of at least equal size and value held or to be acquired by the political subdivision in exchange for the trust property in order to carry out the trust purposes.

(2) If other property is not available, sell the property and apply the proceeds to carry out the trust purposes.

(3) In the event the original trust purpose is no longer practicable or possible or in the public interest, apply the property or the proceeds therefrom in the case of a sale to a different public purpose.

(4) Relinquish, waive or otherwise quitclaim all right and title of the public in and to such land and buildings as have been apparently dedicated but for which no formal acceptance appears of record: Provided, only, That the court is satisfied upon hearing the evidence that there is no acceptance by implication arising out of public user or otherwise, the court shall also determine the consideration, if any, to be paid to the political subdivision.

(53 P. S. §3384, emphasis added).

In order for the DDPA to apply, there must be a sale or alienation of property held in trust for the public. As stated above, the 7 acre parcel in East Caln Township is not property held in trust for the public. The grant of easements to discharge stormwater into a pond located on Kardon Park, and to perform temporary construction improvements is not a sale of the property, nor a change of the use of the property. An "easement" is a liberty, privilege, or advantage which one may have in the lands of another without profit... But it cannot be an estate or interest in the land itself, or a right to any part of it. An easement is a right in the owner of one parcel of land by reason of such ownership to use the land of another for a special purpose not inconsistent with a general property in the owner. Assalita v. Chestnut Ridge Homeowners Ass'n, 866 A.2d 1214, 1218 (Pa. Cmwlth.

2005)(citations omitted). Additionally, a municipality has the right to upgrade facilities that are used for the public.

Kardon Park will continue to be used for public park purposes after the creation of the easements. Thus, the proposed use does not violate the DDPA or the public trust doctrine, and Orphans' Court approval is not required for the utilization of the real property.

Is the Struble Trail Another Victim of NIMBYism?

The Chester County Department of Community Development has just announced its annual grants. Unfortunately the much-anticipated extension of the Struble Trails from its current terminus at Norwood Road along the former rail line to Pennsylvania Avenue did not receive funding - despite all the positive indications previously.

The Stuble Trail is a terrific asset to Downingtown and the surrounding area. The extension of the trail would have had a covered bike shelter at Pennsylvania Avenue where hikers and bikers could park and walk to into town and enjoy the restaurants, cafes and shops there. In addition the extension would have been a key link in the greater Chester Valley trail system that the County has been planning for years.

Nearly everyone supported the extension of the Struble Trail with two notable exceptions.

In a April 27^th article in the Daily Local News reporting on the Council vote to enter into the lease agreement with PECO for the trail extension area, it was reported that Kim Manufacturing opposed having the trail go behind its building, in part, because it felt it had ownership rights to a portion of the trail easement area land.

Councilwoman Ann Feldman voiced the only other dissenting point of view saying, “If the development doesn’t go through, you wouldn’t want the trail.”

Mayor Josh Maxwell convinced Ms. Feldman to vote for the easement purchase by explaining, “Even if the development doesn’t go through, we could use the trail to create a loop (with Lion’s Trail)”.

If the proposal to clean up Kardon Park to construct housing on less than half the land had not been opposed by a small group of NIMBY citizens, this proposed section of the Struble Trail would be connected to a wonderful network of improved and new trails and trail parking within the remediated and undeveloped 22-acres of Kardon Park.

Both opponents of the Struble Trail extension are also the opponents of the Kardon Park redevelopment project. Did their public opposition have anything to do with the County’s denying the Borough this grant when these grants are so competitive and dependent on unified public support? You be the one to decide. Regardless, the residents of the Downingtown area have been denied a wonderful resource for walking dogs, strolling with children, biking into the Borough for lunch or just getting fit on your lunch hour or weekends.

This is another blow for those who believe Downingtown can be an even better town if we believe change can be for the better.

If you want to be part of the effort to get Downingtown’s future back on track, Like us on Facebook by clicking the link below or sign up for our e mail updates at IDEALDowningtown@gmail.com.

You can read the entire article on the Struble Trail extension at http://dailylocal.com/articles/2010/04/27/news/srv0000008134738.prt

Who’s Got the Conflict of Interest?

Ann Feldman is engaging in a no-holds-barred fight to stop the construction of any homes on Downingtown Borough’s Kardon property. She worries that the glimpse of new homes through the woods across the ponds behind her own home will reduce her property values. In an effort to mask her selfishness, she claims to be the defender of open space, property rights and pretty much everything else that is apple pie and American.

Failing to have any valid or fact-supported argument relevant to the Kardon Ponds development, Ms. Feldman and her pro-bono attorney Sam Stretton are now challenging the integrity of East Caln supervisor Joel Swisher and Former Borough Council member Tony Madiro. Feldman and Stretton are claiming that because these men are volunteer members and former officers of the Minquas Fire Company and Ambulence Corps they somehow have a conflict of interest in voting for the project. The conflict, she alleges, stems from the fact that some of the sales proceeds from the new development may be used partially for the construction of a new fire company for the benefit of the public.

Never mind that the new fire station will be better situated to reduce response time for emergency calls. Forget the fact that the current station is not big enough to properly house the fire trucks. And ignore the fact that the volunteer fire department serves the entire community just a small group of individuals. And conveniently overlook the fact that a new Molly Maguires restaurant will move into the vacated fire house building right on Main Street, giving a boost to Downingtown.

This is beyond the pot calling the kettle black – it is a slap in the face to citizen volunteers all across America This accusation is wrong on so many levels. First, “conflict of interest,” according to case law, is “the use by a public official of the authority of his office for the private pecuniary benefit of himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated.” Mr. Swisher receives no money or other item of value for his service either as a supervisor or as a member of the fire company – other than satisfaction of serving his community. The same holds true for Mr. Madiro who was sadly defeated by 11 votes in the last election to Ms. Feldman.

But wait – does Ms. Feldman feel that the construction of those multi-family homes will devalue her waterfront property with its current view of Kardon’s open space? She now sits on the Downingtown Council herself. While she is prohibited by law from engaging in any activities relating to the Friends of Kardon Park lawsuit pending in Orphans Court, she freely engages in activities concerning the land, from walking trail placement to mowing issues. Read that definition of conflict of interest again. Aren’t Ms. Feldman’s activities a clear conflict of interest?

If one takes Ms. Feldman’s attack on Mr. Swisher and Mr. Madiro to its logical conclusion, she and her attorney are saying that citizen volunteers are investing their unpaid time for some personal gain. Small municipalities all across America rely on people like these men who believe that citizenship comes with a responsibility to serve one’s community. Large cities are going bankrupt trying to sustain paid fire departments and bloated bureaucracies while towns like Downingtown are staying solvent relying on those volunteer citizens who feel it is important to invest their time, with no more return than the satisfaction of seeing to it that their communities are safe and well managed. Folks like these often serve in more than one volunteer post. If they faced being attacked in court by the likes of Ms. Feldman, planning boards, fire companies, United Funds, Chambers of Commerce, scouting groups, and all the other organization that rely volunteers willing to spend endless hours would suffer.

Ann Feldman is the text book definition of a "NIMBY," which stands for "not in my backyard." She is grasping at straws with her conflict of interest argument. Straws are all she has left in this fight. She needs to look in the mirror before she accuses people who are keeping our community going of dishonesty in their motives.

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East Caln Taxpayers Must Now Pay Cost of Feldman's Appeal

In October 2009, Anne Feldman and the attorney for the Friends of Kardon Park agreed that they would not oppose the development of the 70 units planned for the Downingtown trash/compost site in East Caln Township. The developers didn’t file their application for “The Millrace” until the Friends agreed not to oppose it to avoid dragging East Caln into the same costly process that Ann Feldman and her friends have put Downingtown Borough through.

Shortly after the developers filed plans with East Caln Township, however, Ann Feldman, who is president of Friends of Kardon Park, decided to oppose the project herself. Despite the fact that Feldman was involved in every step of the Friends agreement, she claimed not to understand that the Mill Race Community’s storm water would be entering 4^th lake when she made that commitment. Feldman was able to gain standing in East Caln due to the fact that her home is adjacent to one of the Kardon Ponds. She argued that the proposed East Caln community would negatively impact the flow of storm water downstream where she lives.

Whether one approves of the community or not, the fact is that the stagnant and algae-clogged ponds will only benefit by the introduction of fresh water into the Mill Race and aerating devices that the development will bring about and pay for. The developers are also proposing to extend a pipe up to a tributary of the Brandywine to bring in fresh water into the millrace and to discharge cleansed stormwater into the water starved ponds. The developers were forced to spend 10 months and 9 legal hearings with a court reporter and numerous expert witnesses documenting every conceivable aspect of the development and its impact. Meanwhile Feldman put forth only her unsupported opinions about storm water, contamination, and the DEP rulings.

While the developer paid the cost of the additional conditional use hearings required to allow Feldman to present her opposition to the proposal, the cost of defending the appeal that she filed against East Caln Township on July 23, 2010, will fall squarely on the taxpayers of East Caln.

Feldman was given ample opportunity to put forth her best argument for denying the approvals of the 70 homes she originally found acceptable during the hearings. Now she and her pro bono attorney, Samuel Stratton of West Chester, are trying to upset the unanimous opinion of the Supervisors of East Caln based on the legal technicalities.

Regardless of whether one believes the ponds and the paths of Kardon Park will be better or worse after the Kardon Ponds community is constructed, Ann Feldman and the Friends have already cost the taxpayers of Downingtown dearly. First, the taxpayers been forced to defend the decision the elected Downingtown Borough Council members made to sell the unusable portions of Kardon Park when faced with the prospect of the EPA declaring the land a Super Fund site in early 1990. Now neighbors in East Caln will be contributing to Feldman’s commitment to defend the view from her back porch in their tax bills as well.

Worse, if the developers of Kardon Ponds are not allowed to start the cleanup of the site by June 2011, Downingtown will lose the nearly $1 million grant funding it received to cap the land and will be forced to clean the park with taxpayer dollars or shut it off from most use.

If Ann Feldman and her Friends made a commitment to stay out of the East Caln process and are now appealing the East Caln Board of Supervisors decision to Court of Common Pleas , what will she do if she loses the Orphan’s Court case on the Downingtown portion of the property? It is one thing to be a sore loser. It is another when that cost of that attitude is visited on everyone in the community.

Have you gotten tired of the controversy and debate in Downingtown?

Would you like to know the truth about Kardon Park?

Take a look at these Myths and Facts on Kardon Park.

http://kardonponds.com/news/myths.aspx