Are the residents of eastern Delaware County entitled to the same considerations and protections of their environmental rights as the residents of western Delaware County? Is the Don Guanella forest as environmentally important as Beaver Valley? Does it deserve the same protections? Judge Green’s precedential decision will hopefully ensure that the answer to each of these questions is yes.
Greenwashing the opposition: December 3rd
Air Quality Update: December 27
Judge Michael Green’s order cites PA’s Environmental Rights Amendment and the PA Supreme Court's Robinson Township precedent
* The Don Guanella forest is on the right.
What you can do to help –>
Why is the Environmental Rights Amendment so important?
As we’ve mentioned before, few Amendments to Pennsylvania’s Constitution enjoyed the kind of support that the Environmental Rights Amendment had in the early 1970s when environmental awareness was sweeping the country. The first Earth Day was in April of 1970. The Environmental Protection Agency formed in December of 1970. Six months later on May 18, 1971, Pennsylvania citizens voted overwhelmingly to approve an “environmental” amendment to the Pennsylvania Constitution. Before voters gave their approval, two consecutive sessions of the General Assembly (both House and Senate) unanimously approved it. It first passed the House 190-0 in June of 1969 and then the Senate passed it 39-0 in March of 1970. It passed the House again in February of 1971 with a vote of 199-0. The Senate then again approved it that same month with a vote of 45-0. When it was time for the public to accept it by referendum, it received more than one million yes votes to just 259,979 no votes. Our PA Supreme Court recently reflected on the overwhelming support the amendment enjoyed: "To say the Environmental Rights Amendment was broadly supported by the people and their representatives would be an understatement.”
Few governments in history have ever enjoyed such a mandate from the people, yet, despite this amendment’s pedigree, many of our contemporary PA State representatives and senators have shown little regard for it. Instead of invoking the amendment on a regular basis to protect their constituents from polluters, at least half of the state legislators in Delaware County have ignored it and in so doing have arguably violated their oaths of office “to uphold our state constitution.” It’s important to the future of Delaware County if not the biosphere itself that this situation change and that our legislators either “see the light” and become environmentally aware, or that we find others to serve in their place. It would be far more helpful to eastern Delware County residents who want to save the Don Guanella forest to have elected officials who see the environment as something that needs our protection rather than to have to fight both them and any future developers.
“Vineyard Commons” was labeled a “by right” development proposal, but based on Judge Green's order, it now looks more like an overreaching plan that was unjustifiably given preliminary approval. Naturally, future plans for Don Guanella would also need to take into account the Environmental Rights Amendment, Judge Green's decision, and to demonstrate to Marple Township that the benefits of the proposed development would clearly outweigh the negative environmental consequences.
A “by right” plan, then, is not inscribed on stone tablets; it is a suggestion of possible uses. As we have pointed out in an earlier article, the by right “capacity study” of the Don Guanella site conducted by Pennoni Engineering was seriously flawed in that it omitted the presence of one of the two streams on the property as well as a few wetlands. The capacity study also ignored Marple’s ordinances regarding tree protections and allowed for prohibited features like flag lots. Yet this study was the basis for one Marple planner's attempt back in February to frighten Marple residents with enormous by right scenarios which have little factual support. In the end, any plan to destroy the Don Guanella forest must, given Judge Green’s decision, be put under the same constitutional microscope and examined for its impact on the natural, historic, and scenic resources that exist on the site.
The Darlington Estate
It's not a done deal: January 18th
“By right” plans refer to development proposals which in theory conform to zoning on the site in question. Naturally, this can mean different things depending on your perspective. Developers, for example, want to maximize profits, so their estimation of what’s allowable “by right” is often greatly overstated.
“The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.” (Article 1, Section 27 of the PA Constitution)
The Beaver Valley court decision may have profound implications for Don Guanella
To understand how the Beaver Valley lawsuit decision could help save the Don Guanella forest, some history is in order. At a March 2015 Concord Supervisors meeting at which development plans for Beaver Valley in Concord were presented, the Beaver Valley Conservancy (BVC) assembled a large team of experts from various fields to present analysis and criticisms of “Vineyard Commons,” the proposal submitted by Frank McKee and others. Yet, despite a long and thorough factual presentation, convincing and unrefuted evidence of the environmental harm of the development proposal was simply ignored by the supervisors when they subsequently granted preliminary approval. In doing so, they not only discounted BVC’s experts and provisions of Concord’s own building and stormwater codes, they failed to show that the development met the environmental protection standards laid out in Article 1, Section 27 (the Environmental Rights Amendment) of the Pennsylvania Constitution. Based on this and other facts, the members of Beaver Valley Conservancy filed suit against Concord Township challenging its preliminary approval of Vineyard Commons.
In his October 24, 2016 decision, Common Pleas Court Judge Michael Green ordered, among other things, the supervisors to conduct “evidentiary” hearings to ascertain the “effect the development will...have upon...the property and associated natural, historic, and scenic resources” of the wildlife refuge adjoining the First State National Historical Park in Chadds Ford. Judge Green’s decision specifically cited Pennsylvania’s Environmental Rights Amendment and the recent Robinson Township PA Supreme Court (SCOPA) case and directed the supervisors to subject the Vineyard Commons proposal to stringent tests and then to rescind approval if the evidence produced at these hearings determined that the “harm clearly outweighs the benefits of the submitted application.” This process laid out by Judge Green puts very high hurdles in front of the Vineyard Commons development.
Written by Ken Hemphill
County Council Blocks an Open Space Bond
Update from Concord Township: Negotiations underway to save Beaver Valley
This incredible email was sent on November 2 to Concord Township residents. (Will Marple residents get a similar email someday?)
"...the Board of Supervisors is presently reviewing the Court of Common Pleas’ most recent decision regarding the appeal of the above-identified plan. Over the past few months, the developers, owner, and interested conservation groups have been negotiating the terms of an agreement to preserve this tract of land forever as open space. To further the effort, both the Concord Township Board of Supervisors and the Delaware County Council have reconfirmed their prior commitments of financial support and applaud the efforts of these organizations. Consequently, in light of the above, the Township will not be offering any additional comment until the negotiations are successfully concluded."
Marple's Commissioners kill Cardinal Crossing
But what about “by right” zoning?
As far as we can tell, this decision by Judge Green represents the first time in Pennsylvania that the Environmental Rights Amendment has been cited in a private land development lawsuit and represents a significant precedent for Pennsylvania in general and Delaware County in particular. In the Robinson Township case, SCOPA had already greatly expanded environmental protections afforded by the Environmental Rights Amendment in their finding that Pennsylvania agencies, including municipalities, were “trustees” of environmental resources within their jurisdiction and must refrain from infringing on the individual environmental rights of citizens. The court added, “protection of environmental values...is a quintessential local issue that must be tailored to local conditions.” As a BVC attorney explained, “there have been some attempts to implicate the Amendment in other private land development cases but none have reached the point of a court determining that the Amendment applied. So in many ways this is a landmark case.”
Delco Needs an Open Space Bond
November 5, 2016
YYou may have missed our other updates
One of these is Beaver Valley and the other Don Guanella. Which is which?
Does one of these deserve less protection than
Beaver Valley in Concord Township
Click the gavel to read Judge Green's Beaver Valley decision