[n.b. see the latest in “The round of applause heard ’round the county” by Ken Hemphill at Neighbors for Crebilly, 9/18/18.]

By Michael P. Rellahan, Daily Local News, 9/16/18

WEST CHESTER — A packed courtroom is expected at the Chester County Justice Center Monday for a hearing on the appeal of Toll Brothers of the denial of its plans to build a housing development at the Crebilly Farm site, property that residents have claimed as the “crown jewel” of Westtown that should be left largely untouched.

The Horsham-based development is asking Common Pleas Judge Mark Tunnell to overturn a 2017 decision by the three member Westtown Board of Supervisors to deny its conditional use application to locate a 319 unit subdivision on the 322 acre property located along Route 926 and South New Street.

Toll Bros. contends that the supervisors denial of its development plans ran against the law, was an abuse of discretion, and was not supported by the evidence it put forward in a number of well-attended public hearings from 2016 to late 2017.

Residents opposed to the development plan are expected to crowd into Courtroom One, where Tunnell moved the oral arguments to in order to accommodate the large number of people expected to attend….

Read more at Daily Local News

Here is the analysis of Neighbors for Crebilly (the only group that has legal standing in this appeal), especially focusing on the importance of the Pennsylvania Environmental Rights Amendment:

Toll Brothers wants our brief “quashed”

As you know, Neighbors for Crebilly has been permitted by Chester County Common Pleas Court to intervene in Toll Brothers’ appeal of Westtown’s denial of their conditional use application. Oral arguments in this appeal will made this Monday, September 17th at 1pm in courtroom #1. Please join us if you can.

A quick word about Toll’s legal arguments which, as you can imagine, mock reality. Their lawyer, Greg Adelman, actually argued in a recent brief to the court that the Environmental Rights Amendment should not be applied to the “conditional use process,” a bizarre line of argument to say the least, and that our legal brief should be quashed. What Toll would have the court believe is that laws passed by the PA state legislature – including the PA municipal planning code of which the “conditional use” process is a part – must not be examined or questioned in terms of their impact on the environment. In other words, the legislature, according to Toll’s lawyer’s flawed reasoning, can pass any law it chooses regardless of the harm it causes the environment, and the courts must not weigh in on those laws.

But outside Toll’s time-space distortion bubble, Courts strike down unconstitutional legislation all the time. As this conditional use application from Toll Brothers would permanently impair environmental and historic resources at Crebilly Farm, the Environmental Rights Amendment must take precedence over the conditional use process since the state Constitution supersedes all laws passed by the legislature. That’s why the process of amending the constitution is so onerous: the amendment must pass the two legislative houses in two consecutive terms and then be approved by voters. Therefore, the unanimously-passed Environmental Rights Amendment (Article 1, Section 27) of our state constitution, outweighs laws passed by the legislature. This amendment guarantees environmental protection for allpeople in the Commonwealth, including generations yet to come. So it is plainly ludicrous for Adelman to argue that the E.R.A. must not be considered in the conditional use process.

It was also curious that Adelman would cite as support for his argument any case from Commonwealth Court regarding the Environmental Rights Amendmentsince, in 2017, the PA Supreme Court threw out the Commonwealth Court’s three part “Payne Test” which had been that Court’s method of ignoring environmental protections afforded state citizens under the Constitution. Writing last year for the majority in Pennsylvania Environmental Defense Foundation vs. the Commonwealth of Pennsylvania, “Justice Christine Donohue said the prior interpretation of the amendment, which included a 3-part legal test and [which] was in place for four decades, ‘strips the constitution of its meaning.’ The opinion clearly defines the role of the state as trustee, which the court said is associated with fiduciary responsibilities.” (Quoted from PA State Impact)

Unfortunately for Adelman’s argument, the Pennsylvania Environmental Rights Amendment occupies higher ground than the conditional use process which is merely part of a set of laws which are informed and governed by our state constitution.