New Garden grants waiver for White Clay Point subdivision

posted Thu, Jan 26, 2012

By Wm. Shawn Weigel

Daily Local News

November 16, 2011

NEW GARDEN — Township supervisors voted 3-2 Monday night to grant the Pennsylvania Real Estate Investment Trust a waiver to forgo an additional subdivision process.

Representatives from trust had asked the board to grant the waiver that allows them to designate several parcels associated with the White Clay Point development as condominiums.

Board members Betty Gordon and Warren Reynolds cast the dissenting votes.

Turst representative Greg Aldeman argued that the designation was allowed under the settlement agreement between the trust and the township from 2007.

In that settlement, Aldeman said that the request was made under the terms of that settlement and not the township's subdivision and land development ordinances.

He also said that the request had nothing to do with incoming White Clay Point tenant Walmart, but rather the future ownership of the entire center.

"This is not paving the way for Walmart," Aldeman said, referring to a flier distributed by SAVE about Monday's meeting. "Walmart is approved: it's either going towards a lease or it's going towards a condo."

Aldeman said the trust made the request for the waiver due to the timing of the settlement agreement with respect to a 2009 state Supreme Court decision, Shaffer vs. Chanceford Township.

Aldeman said the purpose of designating certain parcels as "retail condominiums" is to provide flexibility in terms of the construction and leasing of the overall development.

"What we have found throughout time is that each individual tenant has different requirements in terms of how it finances its construction and development," he said. "Some tenants only come into developments where they can actually finance and separately secure their financing against either a parcel or a condominium unit."

Aldeman said the requirements to go through the whole land-development process would cause undue hardship because the zoning requirements agreed to under the 2007 settlement never dealt directly with the condominium option in a planned community form of ownership.

"Those … were designated for strict subdivision zoning processes. They weren't dealing with ownership," he said. "When we signed that agreement, the law in Pennsylvania was that you didn't need a subdivision approval … to actually form a condominium on our property."

Opponents of the development, however, argued that there was no hardship whatsoever, a sentiment echoed by township solicitor Neal Land.

Citing portions of the settlement agreement, Land said he was "not satisfied that they meet that criteria."

Incoming supervisor Steve Allaband, who also sat on the board when the development was first suggested, said that he didn't feel the board had the ability to waive the entire land-development process.

He also said it wouldn't harm the trust to sit through the entire land development and zoning hearing processes, and the trust has failed to demonstrate a hardship.

When Allaband asked Aldeman if they could break ground tomorrow without having to seek a waiver, Aldeman said they could.

"That's not a hardship," Allaband said.

Dwight Yoder, who identified himself as an attorney representing 540 families in the township, said that it was clear to him that this is a land development issue and that the current plans violate township code.

Board member Bob Norris said that the legal argument was not a factor to him, and that he was exhibiting "blind, naive faith," in asking the trust to increase its monetary contributions to various issues surrounding the development, including additional police coverage, open space and trails.

"That's not a condition, it's just a request from Bob Norris saying, in good faith, guys," Norris said. "You're hearing the issues that the community brings to you. If we save you significant legal fees, is there something in the judicious sense that would allow you to help us in a couple of key areas?"

During the vote, board member Warren Reynolds said that by allowing the waiver, the board also waives away township rights, including the ability to enforce zoning laws.

"You have left the board with no oversight now. None. They have no need to even submit a plan when they build a town center," he said. "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 just got taken to the cleaners."

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