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Cranberry Promenade, Inc v. Cranberry Township

December 29, 2011

CRANBERRY PROMENADE, INC.,
NAP ASSOCIATES, INC.,
NAP ASSOCIATES 2, INC.,
THOMAS W. PETRARC, D/B/A THE PETRARCA COMPANIES, PLAINTIFFS,
v.
CRANBERRY TOWNSHIP, RICHARD HADLEY, JOHN SKORUPAN, JOHN W. MILIUS, DAVE ROOT, BRUCE MAZZONI RON HENSHAW, JOHN K. TRANT, JR., DEFENDANTS.



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM OPINION

I. INTRODUCTION

This action arises from a failed commercial development at a site located in Cranberry

Township, Pennsylvania. Dissatisfied with the denial of their land use applications by Cranberry Township, Plaintiffs Thomas W. Petrarca, a sophisticated real estate developer, and his companies, Plaintiffs Cranberry Promenade, Inc., NAP Associates 2, Inc. and NAP Associates, Inc., initiated this lawsuit against Defendant Cranberry Township (the "Township"), and several of its elected officials and employees, including Defendants Richard Hadley, John Skorupan, John W. Milius, Dave Root, Bruce Mazzoni, Ron Hensaw, and John K. Trant, Jr. (collectively, "Individual Defendants"). (Docket No. 1). Plaintiffs maintain that the Township and the Individual Defendants denied their land use applications for the Shoppes at the Woods in favor of a potential larger development by Simon Property Group ("Simon"). (Id.). Plaintiffs assert that the denials resulted from the Defendants improperly changing the Township's Official Map to reserve a road over Plaintiffs' properties in a location that suited the needs of Simon's potential development. (Id.).

Plaintiffs' claims include the following: alleged violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961, et seq., ("RICO") against the Individual Defendants; § 1983 claims of procedural due process, substantive due process, equal protection against all of the Defendants; and, civil conspiracy under Pennsylvania law, also against the Individual Defendants. (Id.). Defendants have moved for summary judgment regarding all of Plaintiffs' claims, arguing that Plaintiffs have failed to present sufficient evidence from which a reasonable jury could find in their favor at trial. (Docket Nos. 68, 69). Plaintiffs maintain that summary judgment is inappropriate. (Docket Nos. 72, 79, 90).

For the reasons that follow, after considering the parties' arguments and viewing the evidence of record in the light most favorable to Plaintiffs, Defendants' motion for summary judgment is granted.

II. FACTUAL BACKGROUND

Unless otherwise specified, the facts of record are uncontested. Viewed in the light most favorable to Plaintiffs, they are as follows. See Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007).

A.Early Development of Route 228 Corridor in Cranberry Township

Cranberry Township, Butler County, is situated north of the City of Pittsburgh and is an area that has "experienced tremendous growth in both residential and non-residential land development" since the early 1980s. Fisher v. Viola, 789 A.2d 782, 784 (Pa. Cmwlth. Ct. 2001). In the early 1990s, the Township engaged Herbert, Rowland & Grubic, Inc. ("HRG") to develop a comprehensive planning study of the Route 228 Corridor -- an area which then-consisted of undeveloped commercial property between Interstate 79 ("I-79") and Franklin Road. (Docket No. 78-17, Def Ex. MMM at 4). I-79 and Franklin Road both run north-to-south through Cranberry Township. (Id.). State Route 228 ("SR 228") runs east-to-west between those two roads. (Id.). At that time, SR 228 was a two-lane highway and only 24 feet wide. (Id.). However, the Pennsylvania Department of Transportation ("PennDot") had started preliminary planning to expand a 4.5 mile section of SR 228, including the portion between I-79 and Franklin Road, into a five-lane highway to support expected development. (Id. at 5). As part of this study, the authors recommended that the Township consider establishing a north-south connector road from SR 228 to two east-west roads which run parallel to the north of SR 228, Old Mars Road and Rowand Road. (Id. at 22).

Two major developments along the Route 228 Corridor were in the planning phase at that time: Cranberry Woods, a large office park, which is located to the south of SR 228 and Cranberry Commons, a strip mall, which is located to the north of SR 228. (Docket No. 73 at ¶¶ 13, 14). A potential third development was contemplated to the north and west of Cranberry Commons by CREDCO. (Id. at ¶ 20). A campground owned by the Gantzer family was situated on the property located directly to the west of Cranberry Commons, with acreage that also fronted SR 228. (Docket No. 73 at ¶¶ 1, 20, 76). Two additional properties situated to the west of the Gantzer campgrounds were owned by Turnblazer and Eakin.*fn1 (Docket No. 73 at ¶¶ 5, 25, 78). A traffic study prepared for Cranberry Township in 1998 by TriLine Associates, Inc. indicated that the proposed north-south road would travel through the Gantzer campground, enabling access from SR 228 to the CREDCO development. (Docket No. 71-7, Ex. G, part 1 at 12). Specifically, the traffic study states that: "[a]ccess to the planned Credco Development will be provided through a future planned road at the existing driveway serving the Gantzer campgrounds (Pittsburgh North) on [SR] 228. The Gantzer Road will be directly opposite a new driveway proposed for the Cranberry Woods Development . and is proposed to be signalized." (Id.).

B.2000 Official Map

At some point prior to 2000, the Cranberry Commons development was approved. Gary Sippel owned property located to the north of Cranberry Commons and filed a land use appeal as a result of the grant of Cranberry Commons' land use application. (Docket No. 73 at ¶ 23). The matter was resolved and a Consent Order was entered by the Court of Common Pleas. (Id. at ¶¶ 23, 24). The Consent Order provides that Cranberry Township "shall cause to be made and shall adopt an official map of a portion of the Township along [SR] 228, near the existing McElroy Road intersection, providing for a public connector road system from a point on [SR] 228 between I-79 and the Gantzer property, to a connecting point on Old Mars Road." (Id. at ¶ 24). It also states, among other things, that Cranberry Township, upon written request of [Sippel or his assigns] shall promptly acquire the property rights to the right of way provided that [Sippel or his assigns] paid related costs in excess of $75,000. (Id.).

"The 2000 Official Map designated a northbound road on the border of the Gantzer Property and the Eakin property (both ultimately purchased by Plaintiffs), connecting [SR] 228 to Mars Road, across from the entrance to Cranberry Woods." (Docket No. 73 at ¶ 25). Both the Cranberry Commons and Cranberry Woods developments were completed. (Id. at ¶¶ 13, 14). "Cranberry Woods consists of an office park that houses Mine Safety Appliance and its most recent tenant, Westinghouse. The business park is located to the south of SR 228. The principal entrance is via Cranberry Woods Drive, [.] which is across from Plaintiffs' property." (Docket No. 73 at ¶ 13). "Cranberry Commons consists of mostly retail shops with some restaurants, consisting of approximately 550,000 square feet of retail space. Cranberry Commons is located to the north of [SR] 228, immediately adjacent and to the east of Plaintiffs' property. There are two entrances to Cranberry Commons from Route 228." (Docket No. 73 at ¶ 14).

C.Simon Obtains Options on Adjacent Property

Historically, there had been multiple developers seeking to build a mall in the northwest quadrant of SR 228. (Docket No. 73 at ¶ 58). In 2003, Simon, a national shopping center developer, acquired options on a parcel of land northwest of Plaintiffs' property. (Docket No. 77 at ¶ 79). "Kathleen Shields, Senior Vice President for Simon, was the developer of the Cranberry Mall project, in charge of the Cranberry project from the beginning." (Docket No. 77 at ¶ 80). "Simon intended to develop a lifestyle mall on the property with approximately 950,000 square feet of retail space." (Docket No. 77 at ¶ 81). One of the challenges facing Simon's proposed development was a need for traffic infrastructure improvements. (Docket No. 73 at ¶ 60). At the same time, PennDot was planning infrastructure improvements along the entire Route 228 Corridor, from Route 19 to Route 8. (Docket No. 73 at ¶ 61).

Simon engaged a number of consultants in relation to this project, including Delta Development Group ("Delta"), starting in 2003. (Docket No. 73 at ¶ 62, 63). Delta specializes in securing public funding through various government sources. (Docket No. 73 at ¶¶ 62, 63). Simon also contracted with Trans Associates, a traffic engineering firm. (Docket No. 73 at ¶ 82). Simon never formally submitted a development plan to the Township for their properties. Instead, Simon's representatives engaged in various negotiations/conversations with Township officials and representatives of PennDOT to lay the groundwork before fully pursuing this development.

PennDOT was also involved in planning infrastructure improvements in the Route 228 Corridor throughout this time period. (Docket No. 73 at ¶¶ 16, 67). Township officials, state legislators and representatives from Simon involved in considerable correspondence regarding funding for the project. (Id.). From the record, it is clear that Simon and the Township hoped that PennDOT would make a substantial investment in the infrastructure of the Route 228 Corridor. (Docket No. 73 at ¶¶ 88, 89, 119). The potential infrastructure investment would benefit both the Township and Simon. Plaintiffs maintain that while PennDOT's project started independently of the development of the Simon Mall, at some point, the two projects merged.

D.Petrarca, His Companies & Their Entry Into Cranberry

Plaintiff Thomas Petrarca is an entrepreneur who has owned and operated a number of corporate entities, including the three corporate entities which are plaintiffs in this litigation. At his deposition, Petrarca described himself as a real estate developer who was a "sophisticated odds maker" willing to take gambles "like Las Vegas." (Docket No. 74-6, Pltf Ex. 6 at 15). On May 14, 2003, Thomas Petrarca, Inc. (which is not one of the Plaintiffs in this case) filed a Development Application and Conditional Use Application with Cranberry Township to construct a 93,170 square foot retail plaza, a 3,860 square foot fast food restaurant, and a 4,115 square foot drive through bank on one parcel of the property involved in this case. (Docket No. 73 at ¶ 1). This was the site of the former Gantzer Campgrounds. (Docket No. 74-1).

On October 6, 2003, Cranberry Promenade, Inc. acquired two parcels totaling 14.548 acres from the Gantzer family for $2.5 million. (Docket No. 77 at ¶ 76). These adjoining parcels are located north of the Cranberry Woods development and of SR 228, and directly to the west of the Cranberry Commons development, fronting SR 228. (Docket No. 74-1). The Township denied Thomas Petrarca, Inc.'s 2003 applications. (Docket No. 73 at ¶ 2). Plaintiffs filed two land use appeals from these denials in the Court of Common Pleas of Butler County. (Docket No. 73 at ¶ 3). These appeals were never fully adjudicated and ultimately dismissed for failure to prosecute on September 9, 2009. (Docket No. 73 at ¶ 4).

E.Petrarca's Purchase of Additional Properties

Another entity owned and operated by Petrarca, NAP Associates, Inc., purchased two parcels totaling 2.869 acres from Turnblacer, Frey and Ringeisen for $700,000 on July 20, 2005. (Docket No. 77 at ¶ 77). This land fronts SR 228 to the West of the former Gantzer Campgrounds but is not an adjacent property. (Docket No. 74-1). On May 8, 2006, Plaintiff NAP Associates 2, Inc. purchased 6.838 acres of property which is located between the former Gantzer and Turnblacer properties from Eakins for $2.45 million. (Docket No. 77 at ¶ 78; Docket No. 74-1). As a result of these acquisitions, Petrarca, through his entities, Cranberry Promenade, NAP Associates and NAP Associates 2, owned five contingent parcels of land totaling approximately twenty-four acres which front SR 228. (Docket No. 74-1). As Plaintiffs now owned five contingent parcels, they sought to develop a shopping center on the entire property.

F.Correspondence/Discussions Between Simon and Township / Petrarca and Township About Proposed Relocation of Reserved Road

Simon released marketing materials touting their proposed mall, Cranberry Town Center in June of 2003. (Docket No. 75-1, Pltf. Ex. 21, at 13, 19-21). Three depictions of the proposed development contained in those materials show a road starting from the intersection of Cranberry Woods Boulevard turning in a northwesterly direction and connecting to the entrance of the proposed mall. (Id.). Simon did not own any interest in the land upon which the reserved road was laid out at any time.

There was considerable support for the Simon project from public officials at the outset, as evidenced by a May 30, 2003 letter from State Senator Jane Claire Orie to then United States Congresswoman Melissa A. Hart and copied to United States Senators Rick Santorum and Arlen Spector. (Id. at 36). As is detailed in her letter, Senator Orie recognized that the proposed Simon mall would be a boon for Butler County and Cranberry Township, bringing jobs and increased tax revenue to the Route 228 Corridor and she accordingly sought millions of dollars in federal funding to support improvements to I-79 and SR 228 surrounding the mall. (Id.).

"Daniel Santoro was the Assistant Township Manager of Cranberry Township in charge of planning and development from 2000 to December 2006." (Docket No. 77 at ¶ 84). Santoro was the primary contact for the Township with Simon regarding its proposed mall. (Docket No. 77 at ¶ 84). In January of 2006, Simon's consultants, including Bob Goetz of Trans Associates, met with Dan Santoro, Jerry Andree and other individuals concerning the proposed Simon development. (Docket No. 75-14, Pltf Ex. 34). Goetz advised Shields in a follow up email that he had presented the revised road to the Townhip officials during the meeting and explained the purpose of the revised local road alignment. (Id.). Attached to his emails is a CAD drawing titled "Local Road R.O.W." which includes a map of the proposed road and specifically indicates the then-owners of the properties which would be affected by the realignment. (Id. at 2). This map shows Cranberry Promenade as in control of only the properties located at the former Gantzer campgrounds, denoted as "T" and "U" on the map. (Id.). These properties are minimally affected by the proposed road location. (Id.). However, the proposed road travels substantially over the properties listed as owned by Frey and Eakin at "N", "M" and "R" on the map.*fn2 (Id.).

Email communications from Santoro suggest that in June of 2006, he and other Township officials met with Petrarca and his representatives concerning Petrarca's planned development of his properties. (Docket No. 75-15, Pltf. Ex. 35). At the meeting, Plaintiffs requested copies of the proposed changes to the official map which included the location of the road preferred by Simon. (Id.). After the meeting, on July 3, 2006, Santoro emailed Kathy Shields and requested that Bob Goetz forward him a copy of the proposed changes so that he could provide it to Petrarca at a scheduled meeting on July 6, 2006. (Id.).

Santoro testified that in July 2006, he met with Petrarca and his counsel, Daniel Danulik, Esquire, to discuss the proposed revisions to the Township's official map. (Docket No. 73 at ¶ 34). Santoro explained that Plaintiffs provided no input to the proposed changes. (Docket No. 73 at ¶ 35). Plaintiffs agree that they did not provide any input to the Township as to the proposed changes to the location of the road. They claim that the reason that no input was provided was because Petrarca did not recall any meeting with Santoro during which the changes were discussed and that he was never advised of the changes. (Docket No. 74-6, Pltf Ex. 6, p. 75). However, the evidence provided by Plaintiffs confirms that their counsel, Victor Hull, Esquire, was provided with a proposed map produced by Trans Associates showing the right-ofway in the summer of 2006. (Docket No. 81-15, Pltf Ex. 89). To this end, Plaintiffs' engineer Raudenbush testified at the conditional use hearings that he believed that the map which was provided to Hull by Simon and admitted in those proceedings was "identical" to the electronic version of the 2007 Official Map later provided to him by the Township. (Id.).

On December 21, 2006, Goetz of Trans Associates emailed Santoro a CAD drawing titled "Simon Local Road Plan", which contained a map of the proposed road. (Docket No. 77 at ¶ 105; Def. Ex. ZZ). In his email, Goetz states that "I hope you can use for your official map." (Ex. 54). Santoro forwarded this email to Jason Krastas at the Township. (Id.). The parties dispute whether Santoro advised Krastas to make changes to the map or accept it "as is." (Docket No. 77 at ¶ 106). Defendants point to the differences in Goetz's submission versus the Official Map which was ultimately adopted. (Docket Nos. 89 at 48-9; 78-6, Def Ex. ZZ; Def. Ex. UU). However, Krastas testified that he did not personally make any changes to the map that was sent to him by Goetz. (Docket No. 77 at ¶ 106).

Later in December of 2006, Daniel Santoro left the employ of Cranberry Township to work for Delta. (Docket No. 77 at ¶¶ 84, 108). Initially, Santoro worked for Delta under a personal services contract to serve as a consultant for Cranberry during the transition. (Docket No. 77 at 111). This arrangement enabled him to continue to wrap up several projects he was involved in while still employed by the Township. (Docket No. 77 at ¶ 111). Santoro testified that he did not attend meetings with Simon during his first year at Delta as part of a contractual restriction. (Docket No. 77 at ¶ 112). However, he still continued to work on the official map revisions with Krastas and other Cranberry officials. (Docket No. 77 at ¶ 112).

Plaintiffs maintain that other evidence suggests that Santoro did not adhere to the contractual restriction that he was to avoid working on the Simon issues. (Docket No. 77 at ¶ 112). For example, he was copied on an email from Dennis Auker of Delta to Kathleen Shields on February 12, 2007 addressing the revised funding matrix for the Simon mall project. (Docket No. 77 at ¶ 113). Also, in a November 21, 2007 email, Dan Santoro is identified as a key attendee from Delta who was scheduled to attend a future meeting with the Township and PennDot, which, according to Plaintiffs was set to discuss the Simon project. (Docket No. 77 at ¶ 113). In sum, Plaintiffs argue that Santoro's engagement at Delta and continued involvement with matters related to the official map and Simon appear to violate the Pennsylvania Ethics Law, 65 Pa.C.S. § 1103.*fn3 (Docket No. 77 at ¶ 114). In turn, Defendants object to the assertion that Santoro violated the Pennsylvania Ethics Law in any fashion.*fn4 (Docket No. 77 at ¶ 114).

Santoro has since become a principal in Delta and runs the Western Pennsylvania office. (Docket No. 77 at ¶ 108). During the time period in question, Cranberry Township and Simon had consulting contracts with Delta to assist in obtaining public financing for the infrastructure improvements. (Docket No. 77 at ¶ 109). Simon's contract provided that Delta would perform such services in exchange for $11,500.00 per month, plus a bonus payment for success. (Docket No. 77 at ¶ 109). Cranberry engaged Delta for similar services, for a fee ranging from $6,500.00 to $8,500.00 per month. (Docket No. 77 at ¶ 110). At one point, Cranberry also had a one year contract requiring Delta to provide community planning and economic development services in exchange for $112,320.00. (Docket No. 77 at ¶ 110).

John Trant succeeded Santoro and became the Township's point person on the Simon development and PennDot's SR 228 improvements. (Docket No. 77 at ¶ 115). Trant testified that during a two-year period, he spent 30-40% of his time working on these matters. (Docket No. 77 at ¶ 115). He further explained that he has not been involved in any other project with the Township that required as much time or his attendance at a number of meetings as did these matters. (Docket No. 77 at ¶ 115).

G.2007 Official Map

Cranberry's Official Map was revised ("2007 Official Map") in 2007 largely in accordance with the proposed map earlier submitted by Goetz (on Simon's behalf) to Santoro. (Docket No. 73 at ¶¶ 26, 36). The north-south connector road that was on the 2000 Official Map was replaced with a road that traveled to the north and then west, to serve the projected major traffic generator, i.e., the Simon Mall. (Docket No. 73 at ¶ 32). Krastas did not personally advise Plaintiffs (including Petrarca) that the Township was intending to make revisions to the official map. (Docket No. 77 at ¶ 107). The Township fully complied with the notice requirements under Pennsylvania law for the advertisement, public notice and promulgation of the official map. See § V.B.1.a., infra. To this end, the proposed changes to the map were published in a local newspaper, i.e., the Butler Eagle. (Docket No. 74-8, Pltf. Ex. 8 at 2). A public hearing before the Planning Commission was held on January 8, 2007 during which Krastas and Santoro (now a consultant at Delta) presented the 2007 Official Map. (Docket No. 77 at ¶ 112). The minutes from the hearing reflect that:

10. Ordinances:

1. Amendment to the Official Map for the Route 228 corridor

Mr. Kratsas and Mr. Santoro advised that revisions were needed for the Official map of the Route 228 corridor. These changes were shown to the Commission.

Mr. Barry*fn5 made a motion to recommend approval to the Board of Supervisors as presented.

Mr. Morgan seconded the motion. The vote was unanimous.

(Docket No. 75-7, Pltf Ex. 27). Later, at a meeting before the Board of Supervisors on February 22, 2007, Santoro did not appear. (Docket No. 71-14, Def. Ex. M; Docket No. 71-15, Def. Ex. N). Kratas presented the amended map to the Board of Supervisors, a vote was taken and the 2007 Official Map was approved. (Docket No. 71-14, Def. Ex. M). On March 1, 2007, Ordinance No. 2007-376 was promulgated adopting the 2007 Official Map and it was then officially recorded. (Docket No. 71-15, Def. Ex. N).

The Ordinance reflects that the Board of Supervisors "find[s] it necessary to adopt this amended Official Map for the Route 228 area to address and accommodate efficient transportation with the Route 228 corridor"; that "the Route 228 official map presented here is consistent with the township's comprehensive plan"; and that "[t]he properties depicted as proposed township property and/or rights-of-way shall be reserved for future taking or acquisition for public use in perpetuity until actually acquired by the township." (Id.). Plaintiffs concede that they became aware of the adoption of the 2007 Official Map by March 5, 2007. (Docket No. 89 at 33).

H.Plaintiffs' 2007 Land Use Applications

On August 7, 2007, Plaintiffs filed applications for approval of Preliminary Land Development and Conditional Use Plans to develop a 134,000 square foot shopping plaza. (Docket No. 73 at ¶ 5). Plaintiffs concede that their 2007 applications did not include the reserved road set forth on the 2007 Official Map. (Docket No. 73 at ¶ 41). Instead, after an initial amendment was made, Plaintiffs' proposals contained a north-south connector road positioned in a location consistent with the reserved road set forth on the 2000 Official Map. Plaintiffs also did not include an application for a special encroachment permit along with their other applications. (Docket No. 74-19 at 3). They did not include this permit based on advice of their former counsel, Joel Aaronson, Esquire of Reed Smith. (Id.).

Petrarca testified that the economics of his development would "not work" with the reserved road running through his properties as depicted on the 2007 Official Map. (Docket No. 74-6, Pltf Ex. 6 at 169). Likewise, as Mazzoni and Skorupan recalled, Aaronson argued to the Board of Supervisors that a reserved road in this location made the property economically unfeasible for Plaintiffs. (Docket No. 74-10, Pltf Ex. 10 at 13; Docket No. 74-16, Pltf Ex. 16 at 68). But, Plaintiffs' engineer, Jack Raudenbush, admitted that Plaintiffs never conducted a feasibility study which included the reserved road from the 2007 Official Map for the properties. (Docket No. 73 at ¶ 43). Raudenbush also testified that there were multiple configurations of buildings which were possible for the development of Plaintiffs' land. (Docket No. 73 at ¶ 44).

Plaintiffs submitted multiple revised plans to the Township. (Docket No. 73 at ¶ 46). During this time, Petrarca, his counsel, Aaronson, and Cranberry officials had several meetings discussing the applications and potential resolutions of the issues. (Docket No. 73 at ¶ 45). Despite these meetings, two significant deficiencies were never rectified in the applications: traffic mitigation and the location of the reserved road. (Docket No. 73 at ¶ 45). Trant testified that these issues were never resolved because Petrarca was represented by legal counsel, Aaronson, who "preferred at all or most of those meetings" to defer meaningful discussion "about the Petrarca traffic mitigation and the official map road alignment to a further date." (Docket No. 71-5, Def Ex. E at 4). Petrarca also testified that he was willing to condition acceptance of the applications on the completion of the infrastructure improvements by PennDOT and that Trant advised him that the Township was willing to accept the plans based on the contingency. (Docket No. 77 at ¶ 133).

"Each time Plaintiffs would submit a revised report to the Township, a Development Report would be created noting the deficiencies of the revised plan with citations to the applicable ordinance or statute." (Docket No. 77 at ¶ 143). Plaintiffs "would receive a copy of the Development Report prior to the Planning Advisory Commission meeting that would be discussing the application." (Docket No. 77 at ¶ 143). The Township advised Plaintiffs in the first of its Development Reports submitted on October 26, 2007 that Plaintiffs' applications were deficient because the layout of the buildings did not conform to the 2007 Official Map. (Docket No. 1-1 at 24). Specifically, the Development Report sent by Henshaw to Plaintiffs on October 26, 2007, stated that the developer needed to: "Identify Official Map Road on the site plan as adopted by Township Ordinance (Ordinance 2000-39, as amended by 2007-376)" and further noted that "[t]he connecting road, as proposed is not in alignment and does not serve the intended purpose of the Official Road Map." (Id.). Similar deficiencies were noted in subsequent Development Reports submitted on October 30, 2007, January 21, 2008, January 25, 2008, February 5, 2008, February 7, 2008, April 24, 2008, June 24, 2008, and August 27, 2008.

(See Docket Nos. 1-1; 1-2). These deficiencies were never resolved and were cited among the bases for the denials of the applications in February and March of 2009. (Docket Nos. 1-3; 1-4).

Plaintiffs' engineer, Raudenbush, testified that the reports would often be received at the last minute and included citations to inapplicable ordinances or inaccurate statements regarding the requirements of the cited ordinances. (Docket No. 77 at ¶ 143; Pltf Ex. 88). But, he offered no explanation regarding the failure of the applications to account for the reserved road. (Id.). Plaintiffs' position regarding the location of the reserved road on their properties is fully explained in a March 4, 2008 letter by their former counsel, Aaronson, to the Township.

3. A Portion of the Proposed Shoppes of the Woods Development Is Shown to be Constructed on a Proposed Street Included on the Township's Recently Amended Official Map.

The Township's recent approval of the amendment to the Township's official map laying out the referenced proposed street, was, and is, intended to benefit and accommodate the proposed Simon major shopping center development. It is all too obvious, regardless of any Township assertions to the contrary, that the Township's obstruction of the Shoppes at the Woods development and the Township's sterilization of the Petrarca property is driven by the Township's single minded intention to "use" my client's property to accommodate the nearby proposed major Simon shopping center development, access to which has been designed by Simon's consultants to cut a swath through the middle of my client's property in the same location that the Township subsequently designated in its recent official map amendment.

Accordingly, I want to be clear that if the Shoppes at the Woods development is disapproved, my client will not simply appeal that disapproval to the state court, but will also assert those and other claims against the Township and its officials in federal court, and will resist, if necessary to the United States Supreme Court, any attempt to condemn my client‟s property. Given recent statutory changes regarding the use of eminent domain, and changing judicial views, I think we would succeed. In any event, based on my experience, the resolution of such a condemnation dispute will take several years during which, based on case law, the Township would not be entitled to possession of my client's property for any such Simon development access even assuming the Township would otherwise ultimately prevail in the condemnation proceeding which we believe it would not. (Docket No. 78-5, Def Ex. YY at 4 (emphasis added)).

In conjunction with their applications, Plaintiffs submitted a traffic study prepared by traffic engineer, Chuck Wooster. (Docket No. 73 at ¶ 53). Mr. Wooster opined that certain mitigation of traffic would be required at the intersection of SR 228 and Cranberry Woods Drive, if Plaintiffs' proposed development was built. (Docket No. 73 at ¶ 53). Specifically, Mr. Wooster stated that the mitigation should include:

* Construct an additional eastbound left turn lane on State Route 228 at the intersection to provide dual eastbound left turn ingress to the site drive. The turn lanes should provide 300 feet of vehicular storage, exclusive of bay tapers.

* Construct an additional westbound left turn lane on Route 228 at the intersection to provide dual westbound left turn ingress to Cranberry Woods Drive. The left turn lanes would provide 200 feet of vehicular storage, exclusive of bay tapers.

* Construct an auxiliary westbound right turn lane on Route 228 at the site drive. The auxiliary right turn lane should provide 200 feet of vehicular storage exclusive of bay tapers. * * *

The developer IS committed to implementing these improvements. (Docket No. 73 at ΒΆ 54). Plaintiffs contend that Wooster also indicated in his report that these improvements were being planned by PennDOT as part of the SR 228 improvements, and that Plaintiffs would wait for those improvements to be made before breaking ground on their development. (Id.). Wooster also testified that there were traffic issues in the Route 228 Corridor without adding any further development and admitted that if the Plaintiffs' ...


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