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Borough of Downingtown and Council of the Borough of Downingtown v. Friends of Kardon Park

August 3, 2012

BOROUGH OF DOWNINGTOWN AND COUNCIL OF THE BOROUGH OF DOWNINGTOWN
v.
FRIENDS OF KARDON PARK, ANN M. FELDMAN, MARION UNGRICH, EVELYN HOPKINS, PROGRESSIVE HOUSING VENTURES, LLC, J. LOEW & ASSOCIATES, INC., KIM MANUFACTURING CO., STEWART HALL, L.P. AND COMMONWEALTH OF PENNSYLVANIA, ATTORNEY GENERAL APPEAL OF: THE BOROUGH OF DOWNINGTOWN, PROGRESSIVE HOUSING VENTURES, LLC, AND J. LOEW & ASSOCIATES, INC.



The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge

Argued: February 15, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE McCULLOUGH

The Borough of Downingtown (Borough), Progressive Housing Ventures, LLC (Progressive), and J. Loew & Associates, Inc. (Loew) (collectively, Developers) appeal from the October 7, 2010, order of the Court of Common Pleas of Chester County, Orphans' Court Division (trial court) denying the Borough's Petition for Approval of the Sale of Real Property (petition). We vacate and remand.

In July 2006, the Borough issued a Request for Proposal to develop approximately 51.7 acres of land owned by the Borough (Property), of which 27.8 acres are located in East Caln Township (Township) and 23.9 acres are located in the Borough. The successful respondent is a joint venture by Developers, who entered into an agreement with the Borough in 2007, with subsequent amendments, to convey for development approximately 40.5 acres with 305 residential dwelling units, 40 "live over work" rental units, and 20,000 square feet of commercial space.

The land to be developed is composed of the following five parcels. Parcel UPI No. 11-4-23 consists of 7.6 acres partly located in both the Borough and the Township. The Borough acquired this parcel by purchase from Kathryn Meisel in 1962. This parcel is wooded and contains two man-made ponds known as Second and Third Lakes, which are part of the original millrace system that was fed by the Brandywine River. The proposed plan would retain this parcel as parkland.

Parcel UPI No. 11-4-13 consists of 6.8 acres in the Borough and was acquired in 1968 for recreation, conservation, and historical purposes pursuant to Act 70.*fn1 This parcel was released from the Act 70 deed restrictions by the General Assembly in Act 29 of 1999*fn2 and would be developed under the proposed plan.

Parcel UPI No. 40-1-23.1 consists of 14.3 acres in the Township and was acquired by purchase from Downingtown Paper Company for $12,000 in 1968 under Act 70 for recreation, conservation and historical purposes. Another man-made pond, known as Fourth Lake, is located on this parcel. In 1984, a paved walking, jogging, and biking trail known as the "Lions Trail" was installed and bisects the southern portion of the parcel. Legislation is pending to release this parcel from the Act 70 deed restrictions. The proposed plan would retain a portion of this parcel as parkland and another portion would be developed.

Parcel UPI No. 11-4-14.2-E consists of 7.4 acres in the Borough and was acquired by condemnation on December 5, 1974, for park and recreation purposes pursuant to section 2702 of the Borough Code.*fn3 Likewise, UPI No. 11-4-14 consists of 4.3 wooded acres in the Borough and was acquired by condemnation on June 30, 1977, for park and recreation purposes.*fn4 Both parcels would be developed under the proposed plan.

Beginning in the 1930s, the parcels west of UPI No. 11-4-23 (the first parcel that was purchased from Meisel) were privately owned and used as a quarry. When this use ended, the exposed cavities were filled in with industrial waste byproducts and municipal waste. On October 5, 1978, the Borough held a ceremony to "dedicate" as "Kardon Park" the 12 acres of UPI Nos. 11-4-14.2-E and 11-4-14 that had been acquired by condemnation. The Borough intended for Kardon Park to serve as a passive recreational park rather than an active park. The ponds in the park have been historically used for fishing in the warmer months and for ice skating in the winter. In 2004, a public monument known as the Victims of Violence Memorial was erected, and a public ceremony is held annually to honor victims of crime.

The Borough began planning to develop the Property in the early 1990s and applied to the Pennsylvania Department of Environmental Protection (DEP) for clearance under Act 2*fn5 to use the Property as a passive park and for commercial development. In 1999, the Borough had Golder Associates conduct site specific analysis for contaminates in the Property's surface soil, subsurface soil, and groundwater. Golder issued a report that identified a layer of "historic fill," composed of iron slag, metal, paper and wood products, and plastics, as thick as 2 to 12 feet that covers nearly the entire property to the west of the existing ponds. The fill area encompasses a volume of greater than 250,000 cubic yards and contains benzo(a)pyrene, arsenic, iron, lead, mercury, and vanadium. Golder prepared a cleanup plan which proposed the continued recreational use of the eastern portion of the Property and commercial uses for the contaminated area. The report found that the risks to both park users and groundkeepers due to direct contact with contaminants in the surface soil were within limits established by DEP. Golder conducted surveys establishing that 77% of the recreational use of the Property is for walking, running, jogging, biking, skating, and skateboarding on the trails, and that the recreational use was predominantly by adults for about ten minutes or less.

In 2008, in conjunction with the proposed plan, Advanced GeoServices performed a review of the original risk assessment. In its report, Advanced GeoServices found that exposure to the collective concentrations of arsenic, iron, and mercury on the Property posed an unacceptable risk to park users. On August 6, 2008, DEP approved Advanced GeoServices' new cleanup plan that was integral to the proposed development. The cleanup plan involved installing a "cap" over the contaminated areas of the Property to be developed for residences.

The Borough has amended its zoning ordinance and approved a conditional use application for the proposed development of the Property. Under the agreement, the Borough will receive a percentage of the sale of each dwelling unit and will receive funds to provide for another public use, most likely the construction of a new firehouse.

Friends of Kardon Park (Friends), Kim Manufacturing (Kim), Stewart Hall, L.P. (Stewart Hall), Ann M. Feldman, Marion Ungrich, Evelyn Hopkins, and Rosetta Tootle (Residents) (collectively, Objectors) oppose the sale.*fn6 On January 30, 2009, Friends and Residents filed an equity action against the Borough and Developers seeking declaratory and injunctive relief prohibiting the Borough from selling the Property for ...


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