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Discussion - Proposed Map Ordinance An Open Letter to the Board of Supervisors From Lisa Scottoline Response from the Board of Supervisors Other Comments   An Open Letter to the Board of Supervisors From Lisa Scottoline November 20, 2005 Kevin Kuhn, Chairman Michael Rogers, Vice Chairman Paul Hogan, Member Charles Phillips, Member Hugh Willig, Member Charlestown Township Board of Supervisions 4030 Whitehorse Road P.O. Box 507 Devault, PA 19432 Dear Mr. Kuhn, et al; I write this open letter to place on record my views regarding your recent attempt to enact an ordinance encumbering my right to sell my property to developers, if I wish. I oppose the ordinance and hope that you will revisit your decision, so that we can all look together to find better ways to strike the balance between open space and property rights, during further open meetings or by township-wide referendum. There are many less restrictive ways to accomplish our mutual goals, which is not only a more neighborly way to proceed, but a legal necessity under current Constitutional analysis. By way of background, I went to our recent meeting on a rumor that the Supervisors were attempting to pass such an ordinance, only to find at the meeting that it was worse than I would have imagined. I am hoping that you will change your mind, as neighbors, for the right reason: that you are a representative body, and the ordinance does not represent the wishes of your neighbors, which opposed you unanimously. I agree with your open-space goals to an extent, and responsible landowners like me - as I told you, I served on the Broad of Directors of the French & Pickering Trust - love this land. If I were to develop it at some point in time, I would do so responsibly, much as the Township does. But I have a right, like any other landowner in our country, to sell my land to the highest bidder, or whomever I like. Your ordinance obviates that well-established right. I am not alone in my wish to retain my property rights vis-a-vis open space; in fact, referenda regarding open space in two neighboring townships were soundly defeated last week. I think similar sentiment prevails here, but only a referendum would confirm that. I would also hope that you will reconsider the ordinance because it is patently unconstitutional. I have no desire to litigate this issue; lawsuits are negative and costly, especially of a Constitutional stature. But several defects are plain. First, this ordinance was enacted without the basic guarantees of procedural Due Process, which are adequate notice and an opportunity to be heard before the fact. Contrary to your assertion by letter that you were no under "no legal obligation" to provide notice, it is axiomatic that you were, and later notice provisions cannot "cure" this Constitutional defect. In fact, your actions and ordinance run so obviously afoul of the Constitution that I fear that you are being badly advised, to all of our detriment. The proposed ordinance would violate substantive due process as well. I bought this property based on my wish for open space and my equally important wish to obtain an investment property, should my daughter wish to sell to a developer after my death. It is safe to assume that all of us who bought here made a similar analysis, because that was the zoning in Charlestown at the time. The high price I paid for this property reflected the option to develop it at some point - unlike homes in southern Chester County, which are all subject to easement and, as such, are much cheaper - and your ordinance will deprive me of the benefit of my bargain, an unjust "taking" under the Due Process clause. Certainly your language regarding "condemnation," which was both wildly aggressive and inflammatory, would fail under any Due Process analysis. In fact, your entire schema, as revealed by stealthy manner in which the law was phased in - first with no subject properties listed, then with only three, and then finally with the full complement of forty-odd parcels - reflects a bald attempt to covertly change the zoning of only certain properties, both piecemeal and retroactively, and to accomplish indirectly what you cannot do directly. Finally, there is a serious constitutional question whether the Supervisors can, consistent with the Equal Projection Clause, enact any ordinance that applies only to certain properties. In fact, the listed properties, admittedly chosen only by your subjective view of the "viewsheds" that are "pretty," is the very definition of arbitrary and capricious state action that violates the Constitution. That some residents whose properties are not affected by the ordinance may be in favor of it only reinforces this point. Laws must be applied equally to all, and the Supervisors cannot effectively enact a zoning scheme that applies only to certain properties, which are, of course, the only properties that have the potential to be developed. I remain astounded that any competent Township lawyer could have advised you otherwise. Finally, as you will recall, there were many residents at the meeting who said they "don't trust you," "suspect your motives," and who accused you of bad faith. Frankly, I had been loathe to go that far, but certainly any continued adamancy in the face of such overwhelming opposition does leave your motives open to such allegations. As a legal matter, you may know that public officials are immune from lawsuits for damages when they act within the scope of their official duties, but officials who act in bad faith lose their immunity from suit. Put plainly, if bad faith exists, the Supervisors may be sued over the proposed ordinance not only in their official capacity, but also in their individual capacity, and may be held personally liable for damages. I hope it doesn't come to that; litigation is ugly and squanders resources, time, and good will. But should you go forward, you should know that we residents are not without grave legal remedy. I hesitate to threaten to take your home, but in fact, you have literally threatened to take mine. I hope you will reconsider and abandon the ordinance in its entirety, so none of us have to "lawyer up" and do battle in court. I believe we can still work together as neighbors, to figure out what all of us truly wants, and then try to reach our common goals in a manner that is kindest and most respectful of all of us. Thank you. Sincerely, Lisa Scottoline   Response from the Board of Supervisors November 22, 2005 Dear Ms. Scottoline, While I don't believe the Charlestown Website is the appropriate venue to debate the Official Map Ordinance I am compelled to respond here because your letter contained so many misleading statements. Your first assertion that the ordinance is unconstitutional is incorrect as the Pennsylvania Municipalities Planning Code Article IV, Sections 401-408 specifically authorizes municipalities in the Commonwealth to adopt an Official Map by ordinance. I would also take exception to your comment that all who purchased larger tracts of property in Charlestown did so with the intent to sell their property to a developer at some point in the future. Of recent, the Stonorov family's sale of development rights to the Township would disprove this assumption. They did however wish to maximize the value of their property and working with the Township did just that. Your charge that the Supervisors did this as part of some stealth scheme is also incorrect. The ordinance was originally adopted after numerous publicly advertised hearings in 2002 and 2003. The Open Space Commission was then charged with identifying properties based on the Township's Comprehensive Plan, which was also adopted after numerous public hearings in 2001. This process was conducted over a two year period during which all meetings were advertised and held publicly at the Great Valley Middle School. One of the responsibilities of the Board of Supervisors is in fact to enact zoning ordinances. This is done to address the Charlestown community interests at large, not to reward or penalize specific landowners. Zoning is not static and must change as communities change. Charlestown's zoning ordinances have changed over the years and will continue to change in the future. The law in Pennsylvania has been clear for many years that as landowners we have no vested interest in zoning other then what the statute states. This ordinance, contrary to your representation, is not a zoning change. I commend you for your service on the Board of the French & Pickering Creeks Conservation Trust as it clearly demonstrates your commitment to open space preservation. I also spent several years on the Trust's Board and regretfully stepped down after being elected Supervisor due to time constraints. The French & Pickering Creeks Conservation Trust endorses the use of the Official Map for the preservation of open space, so I'm perplexed that you would object to its use in your own Township. Charlestown has no desire to negotiate with any property owner for less than market value, and if the landowner can secure a better deal with a developer they are free to do so. The purpose of the ordinance is to allow Charlestown the opportunity to preserve open space before it is permanently lost to development. As Eleanor Morris, founder of the French & Pickering Creeks Conservation Trust told me back in the early 90's "they aren't making any more dirt, you know". Open space preservation is not only for viewshed protection that is enjoyed by all residents but to mitigate the real economic burden that accompanies suburban sprawl, which includes everything from traffic & public services to increased school taxes, just to name a few. This is the only response I will provide via the Charlestown Website as this is a private website and not a formal extension of the Township Government, but I felt that many of your assertions needed to be corrected. I encourage you and all residents to attend our next public hearing on this topic on Monday, January 23, 2006 at 7:30 P.M. at the Great Valley Middle School, Room 154 and continue to provide the Board with your thoughts on how we can work together and be successful in the preservation of open space in our community. As promised at the last meeting, at least thirty days prior to the meeting in January, property owners listed on the official map will receive a copy of the revised proposed ordinance. The revisions to the ordinance are a direct result of comments we received at our last hearing. In the meantime please feel free to contact myself or any other Board member should you have any questions or additional comments, and have a great Thanksgiving Holiday. Sincerely, Kevin R. Kuhn, Chairman Charlestown Township Board of Supervisors   Other Comments Comment from Ted Winicov, 11/21/05 Thank you for publishing the letter from Lisa Scottoline. Maybe I'm cynical, but one has to wonder what a person is really thinking when he/she insists repeatedly that they do not want to get involved in lawsuits and disfavor litigation. Sounds to me like Lisa Scottoline is interested in developing her property and doesn't want anyone getting in her way. Maybe that's her right, but I can tell you that there are many of us in Charlestown who bought our properties (large or small) because of the character of the Township, primarily the large amount of open space. Having grown up in Tredyffrin Township during the 60's and 70's and watched the farms and larger parcels of land disappear, it disappoints me that people still see the land as a way to build their investment portfolios. Ted Winicov ---------------- Reply from Lisa Scottoline, 11/22/05 Dear Ted, I appreciate your view, and thanks for taking the time to offer it. But the way I look at it is that mostly everybody views their home as their major, if only, investment, and the one that they will hand down to their children. I don't apologize for that; I am one of those people. I don't have an investment portfolio. I live in my investment portfolio. Everybody in the Township can sell their house to the highest bidder, as you can, and all I want is the same right as you. Actually, I do have that right, but the Township wants to take it from me, even though I paid for it. And I don't think my right to take care of my child and grandchildren (after my death) should be sacrificed to your wish to see pretty views. I would never impose that judgment on you or your family. And I do want to avoid a lawsuit, but the best law is still the golden rule. Put yourself in my shoes, then see if that changes your view. With thanks. All best for the holiday, Lisa ---------------- Comment from John and Deborah Hausladen, 11/23/05 We are in support of the main issue in Ms. Scottoline's letter and are in agreement that the Official Map Ordinance may potentially be usurpation of property rights. Furthermore, just because there has been an enacted ordinance it does not mean that it's constitutional. Finding out that we were on the "list" by word of mouth is my first indication questioning intentions. An apology for not notifying those on the "list" - even thought you say by law is not necessary - has us doubting intentions now and with any future board should the Official Map be enacted. John and Deborah Hausladen ---------------- Comment from Jacob Merriwether, 11/26/05 My parents moved to an old run down farm in Charlestown in 1944 and restored and enlarged it over many years. I have lived in the Township off and on most of my life. No matter where I was living, Charlestown was always "home" to me. In the late 1980s, I and my three siblings had to sell that farm, then about 85 acres. Conditions were such that we could not keep the farm in the family, and chose to develop it into 11 lots, including the original farmhouse and associated buildings. At this time, there is a total of 8 residences on the former farm. I would like to think that if the opportunity to sell development rights to that farm had been available to myself and my siblings, we would have gladly sold those rights and found a buyer for the intact farm, or perhaps I would still be living there. This is especially true in hindsight, as we had no idea how much hastle and how many years it was going to take to get approvals for lot boundaries, perc tests, building envelopes, handle water run-off, tree displacements, etc. I sincerely hope that the terms of the proposed map ordinance can be worked out to everyone's satisfaction while ensuring that the Township will at least have the opportunity to offer to purchase development rights to farms as they come up for sale. ---------------- Comment from Wendy McLean, 11/28/05 Dear Jacob - You are quite right that the sale or transfer of development rights is a valuable tool in preservation of open space. The recent transaction between the Township and the Stonorov family is one example of how well this tool can work. This tool exists independently of the Official Map. In fact, the Official Map statute says NOTHING about sale of development rights or conservation easements. The Stonorov transaction was completed WITHOUT the Official Map being in play. My recollection is that, when the Official Map was first proposed three years ago, Michael Churchill was opposed to the Stonorov property being placed on it. Yet, through cooperation rather than coercion, the desired result has now been achieved. Similar results have been achieved with the Jenkins and Solda properties. The Official Map is not necessary for sales of development rights. Another statute, the Open Space Lands Act, provides the Township with more tools for open space preservation, without the coercive features of the Official Map. Placing a large property on the Official Map is punishing those who have maintained those lands. The Supervisors are saying, in essence "We don't want you to do what your neighbors did." Nice reward, isn't it? There are other ways to achieve the desired goal of open space preservation. Let's have a dialog on the whole range of options, with neighbors and supervisors on equal footing, without the threats implicit in the Official Map. Wendy McLean ---------------- Comment from Lisa Scottoline, 11/28/05 Dear Mr. Kuhn et al., I take exception to your assertion that my letter was "misleading," which is the only reason I write. Everything in my letter is true and remains unrefuted. Your statute is overreaching and your attempts to enact it unfair and unlawful. The unconstitutionality of the ordinance you propose is plain and has never been litigated otherwise. In addition, regardless of your claims to the contrary, your unduly burdening and delaying my right to sell my land to a developer, effectively rezones it in order to prevent its development, even though it was an option I bought and paid for. The Stonorovs' actions are not to the contrary; if they wish to sell their house and land to the Township or anyone else for a song, that is their right. In fact, it only reinforces my point; the question is, who decides the terms under which I sell my house? I say I decide, and you say that government decides. You are trying to enact an ordinance that, by its plain language, forces certain homeowners who wish to sell their properties to developers to negotiate with you exclusively for one full year, and worse, to accept your terms or have their homes condemned. That's not fair dealing, that's extortion. You don't care if I and others on the list are against your ordinance and are now fearful that the Township may simply take and condemn our loved homes; I watched you, in the face of unanimous and angry opposition (and even a tear or two), simply repeat the same disingenuous arguments, as you do in your recent letters. And you beg the question when you say that you were elected to preserve open space. As you well know, very few people in this Township know for whom they're voting in a supervisory election; in fact, there was so little interest in your position that you ran unopposed last month. It is also telling that you went forward without undertaking a referendum to ascertain the will of the majority of our residents, as our two neighboring townships have done; in both cases, the open-space initiatives failed. Residents not on your list may nevertheless loathe government interference with the private right to contract, as a matter of principle. Certainly those homeowners with larger tracts who are not yet on your list may recognize, correctly, that they may be placed on it next year, if you enact your ordinance. In fact, I have gotten email from residents supporting me and calling what you are doing un-American. They are right. But even if you were acting to represent the majority, your ordinance would still fail. It may be that some other residents, not on the list, would be satisfied to eliminate my fundamental rights in order to fund their wish to see pretty views. But that doesn't make it right, and that is exactly what the Equal Protection Clause was designed to prevent, the tyranny of a majority against a minority. And I doubt that residents would have voted for our recent earned-income tax if they knew it was enacted to fund litigation against their neighbors and to purchase pretty views, and not the basic governmental services such as police and fire. Contrary to your view, I think police and fire are far more necessary, and are certainly the conventional governmental services. They are not necessitated by further development, as your letter suggests, they are necessitated because we live in the modern world. My burglar alarm company calls us sitting ducks in Charlestown, and most of us have experienced or seen vandalism, from the broken mailboxes, to stones thrown through car windows, horse fences broken, litter tossed everywhere, drunken or poaching hunters, and graffiti blanketing every bridge and sign. Vandalism ruins pretty views, too, and decreases the quality of life here, but it will only grow, absent a police presence. There is significant evidence that such things invite crime, signaling the lack of police. Of course, one violent crime will be all it takes for you to realize that a cop or two may have been a better expenditure of taxpayers dollars than my house.I wonder how many cops and cruisers we could have gotten for the two million dollars you spent on the Stonorovs? At this point, you represent only yourselves and your agenda, without regard to fairness, legality, or the effects on me and my family. The only way you will ever convince me of your good faith and competence is to abandon this wrong-headed statute and embark on a voluntary campaign to convince your fellow neighbors of the rightness of your cause. This is how land trusts operate; they use persuasion, not force, and appeal, not condemnation. You should be ashamed of yourselves for threatening us by statute, and for turning your backs on citizens you are supposed to represent. It is a terrible way to behave in a season of love, tolerance, and peace. Sincerely, Lisa Scottoline ---------------- Comment from Russell and Suzanne Naylor, 02/08/06 Dear Sirs: We would like to know from the January 23rd meeting, the list of priorities that was shown on the screen for the reasons for putting the properties on the Open Space Map. Before the March 20th meeting, could you please prioritize each property on the map so each landowner can understand why their property has been chosen on the Open Space Map listed by priorities. We would also like to know more about the proposed trail priority, which you said was the last important priority. Information as to where the trail will be, its purpose, who would use it, and what rights landowners affected by it would have are some issues we would like answers for. We would not have known that our property was on the Open Space Map if someone had not seen an article in the news and called us. We do not look at the Charlestown webpage each day. The only way we knew we were on the Open Space Map was that a friend called and told us. It seems to us that any landowner that potentially would be affected by the proposed ordinance be notified in writing by the township. Mr. Kuhn has said that he is not intimately acquainted with our land; we are intimately acquainted with our land. We have priorities. Our priority is to take us off the map. We will voluntarily call when we would like to negotiate the selling of our land and give the township an opportunity to purchase it which, we said at the meeting on January 23rd, will be never. Since we will never sell our land, God willing, our priority is that we be taken off the map. Of course, there is another alternative which is to put every landowner in the township on the map and ask all landowners to vote up or down for approval of the proposed ordinances. This would be truly the one equitable way of implementing such an ordinance. Having said this, it is our belief the best way is to ask each landowner to agree to voluntarily engage the township for a valid offer for their land in the event the landowner decides they wish to sell their property to an outside party that offers the potential for further development. Sincerely, Russell and Suzanne Naylor

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