The opinion of the court was delivered by: Senior Judge Flaherty
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JIM FLAHERTY, Senior Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.
The Pennsbury Township Board of Supervisors (Board) and Robert Crandell, Jeannie Fenton (Mrs. Fenton or wife), Alma Forsyth, Aaron McIntyre and William J. Sappington, Jr. (collectively, Citizens) appeal from an order of the Court of Common Pleas of Chester County (trial court) which prohibits Board member Wendell Fenton (Fenton) from participating in any review process, decision and/or approval involving Pennsbury Village Associates, LLC (PVA).*fn1
This case has a lengthy history and involves land formerly owned by Mr. and Mrs. Layton, which has been identified as Parcels A through E. Parcels A (the West Parcel) and C (the East Parcel) are owned by PVA. Parcel B was donated to the Township for use as the site of its municipal building. Parcels D and E were sold to Pennsbury Township (Township) to be used as a community park. The acquisition was partially funded with a grant from Chester County (County) through the County's Open Space Municipal Grant Program. As a condition of obtaining the grant, the Township granted a declaration of covenants, conditions and restrictions on the property. PVA also owns a tract of land known as the Hickory Hill Parcel.
In 2003, the then Board adopted a Traditional Neighborhood Development (TND) as an overlay to the Multiple Use District. The overlay allowed for a village-type development as a conditional use. In 2004, PVA applied for conditional use approval as authorized by the TND ordinance, for a mixed use, high density residential development to be called "Pennsbury Village." PVA sought to build 154 units and 80,000 square feet of commercial space. In addition to its own lands, PVA proposed to use a portion of land owned by the Township. The Board conducted hearings, at which Fenton and Charles Scottoline (Scottoline) appeared and made statements in person or through counsel, objecting to the plan. Fenton's primary objection was that Township property was being used for private purposes. Fenton and his wife also solicited funds to oppose PVA's plans. After concluding the hearings, the Board approved a modified version of the original plan subject to numerous conditions, which prompted appeals by both PVA (#04-08055) and Citizens (#04-08070).
Before the appeals could be heard, the issue of the use of the Township land for private development was submitted to the Chester County Orphans Court, which determined that the Township property could not be used as part of PVA's plan. The decision put all parties back at square one. The parties then met in an effort to obtain a resolution.*fn2 Key to the discussion was how to treat and discharge effluent and placement of access roads. In September of 2005, PVA submitted a revised TND ordinance for consideration.
While the parties continued discussions, Fenton, a republican, ran for the Board on a platform that opposed PVA's proposal and the "as of right" commercial site of PVA's property. Scottoline, a democrat, ran on the same platform. Fenton won the election and took office in January of 2006.
Thereafter, with respect to PVA's plan, the parties entered into a stipulation, which was approved by the trial court on March 8, 2006. Both Fenton and Scottoline participated in the settlement discussions that occurred from October of 2005 through 2006, and resulted in the stipulation.
According to the stipulation, a road required by PVA would pass through park land owned by the Township. In order to implement the stipulation, the Township solicitor wrote to various County officials requesting their cooperation. In April of 2006, the Pennsbury Township Planning Commission (Commission) was asked to recommend placement of the road referenced in the stipulation. Fenton and Scottoline advocated before the Commission that placement of the road be in a location contrary to that envisioned in the stipulation. The Commission approved the "Green Route", the route envisioned in the stipulation. The Board also approved the same, with Fenton voting against it. The Green Route encroaches on Township park land which is subject to restrictions.
On May 1, 2006, according to the minutes of a regular meeting of the Board, Fenton stated:
He is not in favor of putting a road into the park that would service a development. He suggested all parties involved might want to revisit the stipulation to consider putting the road in front of the township building close to Route 1.
Thereafter, the County denied the Township's request to use the park land. Fenton then advised fellow Board members of the County's decision and stated that such rendered the stipulation with respect to the road, null and void. Fenton further stated that he was still adamantly opposed to a so-called TND ordinance. In response to a letter written by another Board member, Mary Anna Ralph (Ralph), Fenton contacted the County in writing, seeking the County's opposition to the terms of the stipulation.
On July 13, 2006, PVA sued the County over its refusal to permit use of the park land. PVA also petitioned to enforce or reform the stipulation in light of the County's refusal. Thereafter, PVA, the Township and the County entered into negotiations to ...