Board votes in favor of PREIT request

posted Thu, Jan 26, 2012

By Richard L. Gaw

Chester County Press

Following a three-and-a-half-hour deliberation on Tuesday, one in which impassioned citizens pleaded with its leaders to not give in to the wishes of a big-time developer, the New Garden Township board of supervisors voted 3-2 in favor of granting the Pennsylvania Real Estate Trust (PREIT) a waiver request to convert the new White Clay Point Town Center in New Garden Township from a subdivision into a condominium form of ownership that, according to PREIT, would provide flexibility in attracting potential tenants to the site, as well as stimulate the resale of the overall development.

Before a packed audience at the township building, Greg Adelman, PREIT attorney and spokesman, said that PREIT was making the request because it believes that requiring the Philadelphia-based company to go through a subdivision process would cause “undue hardship,” and that the arrangement would potentially dissuade potential tenants from becoming a part of the center.

“What we have found over time is that each tenant has different requirements in terms of how it finances its construction and development,” Adelman said.  “Some tenants come into developments where they can finance and separately secure their financing against either a parcel or a condo unit. If you take away these units and it just becomes just one big center with no individual interest in the ownership of these buildings, you will discourage certain tenants from coming. (If the waiver is passed), PREIT will still continue to manage the overall center and make sure that all terms are approved through the township.”

PREIT unveiled Phase 1 (A)(1) of the project at the township’s October board of supervisors meeting, which calls for the construction of a 181,000-square-foot Walmart on the south side of Route 41, and a Wawa convenience store located to the south and across Route 41 from the store. Scheduled to break ground later this year and completed in 2012, the Walmart and the Wawa will be the first phase of a projected 716,000-square-foot retail and mixed-use town center, extending from just north of the Route 7 exit, and extending to Sunny Dell Road and Reynolds Road in Landenberg.

In addition to the Walmart, a multi-tenant retail center is scheduled to be constructed adjacent to the store, and an 83-lot age-restricted residential community will be constructed on the north side of Route 41. Additionally, the project calls for road improvements to Sunny Dell Road, Sharp Road, Sheehan Road and the widening of Route 41, as well as some improvements on Route 7.

The project is scheduled to be smaller than originally expected. Based on the subdivision/land development plan changes for the project issued on Aug. 3, the “footprint” of the Walmart is being reduced from 184,198 square feet to 181,648 square feet, while the Wawa is being reduced from 6,105 square feet to 4,983 square feet.

PREIT was appealing to the township in compliance with the Shaffer Decision, a 2008 law passed by the Pennsylvania Supreme Court which ruled that the planned decision of a tract of land into units or the transfer of a unit cannot be done without first having receiving development approval by an authorized municipal-like association.

Adelman referred to the 2007 settlement agreement between the township and PREIT, which stated that “if the provisions of a township’s subdivision and land development ordinance conflict with the terms of this agreement, the terms of this agreement shall  govern.” “When you take a look at the zoning requirements in the settlement, if you make somebody comply with that, you will end up with never being able to have a condo (arrangement) on this property,” Adelman said.

“The issue of condominium ownership wasn’t dealt with because the law at the time didn’t require it to be done without municipal approval. It regulates the form of ownership that can occur on this property, it eliminates a feasible, working ability to form retail condominiums on this property.”

PREIT’s request caused a flourish of disapproval by township residents, who devoted a two-hour time block to emotional appeals — many of whom have their roots still dug in their opposition to the entire project — and tactical, well-planned arguments that presented the case that PREIT’s appeal of “undue hardship” didn’t have aleg to stand on. Donna Lewis of Somerset Lake questioned the validity of building a Walmart so close to the Delaware line. “This Walmart is going to be in Pennsylvania,” she said. “Fifty yards from there is Delaware. Who’s going to come and shop and pay taxes on multiple items when they can go to Lantana Square and not pay taxes?”

Richard Trask of Somerset Lake, a vocal opponent to White Clay project, said that a decision of this magnitude should go through the normal legal channels. “They’re (PREIT) using this settlement agreement to get what they want, and when they’re through with it, they’ll sell off chunks of land,” he said. “Doing this through by means of a waiver is probably illegal.”

Referring to the oversized architectural map of the White Clay plan on a screen beside him, Adelman responded to Trask. “You’re insinuations are wrong,” he said. “This plan hasn’t changed, and this board holds those keys. If someone else comes in here and says, ‘I want to build a Costco where the retail strip is,’ they will have to agree to that. This isn’t a subdivision. This is about the ownership of what you see on that board.”

Dwight Yoder, an attorney serving on behalf of 40 families whose homes are within site of White Clay Point – many of whom moved to the area after the settlement was agreed to — disputed that PREIT’s request was due to “undue hardship,” and urged the board to deny PREIT’s request and allow the subdivision process to take place, funneling the process through the township’s planning commission and zoning boards. “This is a classic, self-inflicted hardship,” he said. “You can’t create the hardship, and then go to the municipality and say, ‘By the way township, we have a hardship, and you have to waive the plans.’

“In my opinion, to essentially use a waiver to a subdivision is a backdoor way to get variances to zoning ordinances.”

Long-time supervisor Steve Allaband, who will replace outgoing supervisor Baclay Hoopes on the board next year, pointed out several discrepancies in the interpretation of the wording in the settlement agreement. He then asked township solicitor Neil Land whether the board had the authority to waive the subdivision process. According to Land, the township did, in fact, have the authority to grant the waiver.

“(The board) has the right and the responsibility, although there is no responsibility to reach that decision tonight,” he said.

Forming his opinion under the caveat of what’s best for the township, supervisor Bob Norris said that denying PREIT the waiver would force the township to challenge PREIT in court, which would cost the township thousands of dollars in attorney costs. “Will the township win that legal battle?” he asked. “If we force them (PREIT) to go with the subdivision process, we get stuck with big fat legal fees. We could stick it to them, but it doesn’t change the final outlook.”

Norris then appealed to the members of PREIT that if the waiver was passed, to consider the possibility of implementing more open space considerations to White Clay Point, in response to the many appeals from township residents. He then made a motion to pass the waiver und er the stipulation that no construction vehicles will be allowed through Somerset Lake streets during the time of construction and contingent upon agreeing to all terms of the settlement agreement.

When the final tally was taken, those in favor of passing the waiver were Norris, Chairman Robert  Perrotti and Barclay Hoopes. Those not in favor of the waiver were Betty Gordon and Warren Reynolds, who did not believe that PREIT’s argument for the waiver did not define “undue hardship.” “When someone is making a hardship claim, we should see some supporting documentation,” he said. “You need to show what the hardship is.”

At 11:30, soon after the decision was rendered, Reynolds leveled Norris, Perrotti and Hoopes with a closing response. “By saying, ‘I’m doing this,’ you’re waving all subdivision oversight zoning and deliberately all zoning oversight, including the zoning dimensional criteria in the settlement agreement. You have left New Garden with no oversight now. None. They have no need to even present a plan when it comes time to build the town center. You can say, ‘Present a plan,’ and they’ll say, ‘Why?’ You’re granting a waiver we’ve never granted before to the biggest entity we’ve ever dealt with, that has no hardship. New Garden Township just got taken to the cleaners.”

Reynolds’ comment, which he asked to put on the township record, drew loud applause from the many township citizens in the audience who remained.

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