Using this not-so-secret weapon, the Beaver Valley Conservancy stopped
Written by Ken Hemphill
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We share some of the blame for this since we all tacitly agree to allow corporations to exist in the first place. Like Dr. Frankenstein losing control of his creation, our monster is now running amok across the countryside. So how do we fight back now against this wealthy psychopath? How can townships stand up to this monster?
News from your Neighbors
This constitutional mandate requires that the Westtown Supervisors deny Toll’s development application. Multiple testimonies over the past 10 months provided ample evidence that Toll’s Colony at Crebilly would wreak irreparable environmental harm and thus trigger Article 1, Section 27 protections. Experts testified to certain damage to our waterways, groundwater, and scenic viewsheds. Others testified that developing Crebilly would cause the permanent loss of its historical value as part of the Brandywine Battlefield. One of our witnesses documented woefully inadequate stormwater basins and management; a wastewater irrigation system which would leach household chemicals, antibiotics, and pharmaceuticals into the groundwater; 50 acres of impervious surfaces (5 of which would not drain to any basin) sending lawn chemicals, auto fluids, and other contaminants directely into Radley Run and the Brandywine Creek; lost habitat and scenic viewsheds; massive re-grading of the landscape; and wetland encroachment and disturbance, among other things. The unsettling report is here. There is also a public aspect to this land which we outlined here.
A Seventh Heaven
The Big Swindle
* They've also shown little regard for the environment and taxpayers. Toll was recently guilty of violating the Clean Water Act and was made to pay $750,000 in fines. The Wilmington News Journal recently detailed Toll’s failed lawsuit against New Castle County which had demanded that Toll pay for all needed infrastructure upgrades for a proposed large development. Losing that lawsuit in Delaware hasn’t stopped Toll from trying to foist the cost of major road infrastructure improvements onto Westtown Township and PennDOT (i.e., taxpayers) even though they would make tens of millions from their Colony. School district and township taxpayers would be on the hook for hundreds of new students and additional township services, too. Taxpayers downstream in Wilmington would pay higher costs to treat more degraded drinking water pumped from the Brandywine. Aside from paying for some minor road adjustments, Toll would be externalizing all other public costs onto the community. And they’ve had the gall to ask for "bonus density" to connect to the sewer system and make other road improvements even though they claim they've submitted a “by right” plan.
** Castillo v. Toll Brothers, Inc. involved a group of workers who brought two class action suits against Toll Brothers., Inc.. “The plaintiffs were employees of two of Toll Brothers’ subcontractors who allegedly failed to pay overtime, provide meal and rest breaks, issue accurate wage statements and keep accurate payroll records, and outright refused to pay wages. The plaintiffs sought to hold Toll Brothers liable under Section 2810 by arguing that Toll Brothers knew or should have known that its contracts with the subcontractors were insufficient to allow compliance with the applicable labor law.” http://caselaw.findlaw.com/ca-court-of-appeal/1576054.html
"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" -Pennsylvania's Environmental Rights Amendment (Art. 1, Sec. 27)
Photo: Tom Maher
162 houses from being built on 270 acres in Beaver Valley
News from your Neighbors
100+ years of case law has established the unfortunate fact that corporations are immortal “legal persons.” They have the same legal protections and rights as flesh and blood human beings, yet as Edward Thurlow once said, “Corporations have neither bodies to be punished, nor souls to be condemned; they therefore do as they like.” Toll Brothers, Inc. definitely does as it likes. As many concerned area residents pointed out Monday night during public comment at the last conditional use hearing at Rustin High School, Toll’s wanton disregard for the environment, poor construction standards, flouting of township codes, and disregard for people’s quality of life makes them one of the most despised builders in America and the target of thousands of lawsuits nationwide. Checking Toll's record of anti-social behavior against the range of human personality disorder types, it could be said that Toll Brothers exhibits classic symptoms of psychopathy.
Not only did Judge Green’s mandate to the Concord Township Supervisors require them to factor the environmental harm of the development into their decision, he clearly gave primacy to the Environmental Rights Amendment by ordering its consideration BEFORE they reckoned with the Municipal Planning Code and township ordinances. His order is here.
If the would-be developers of Beaver Valley had appealed the judge’s decision (if an “order” was even appealable), they would have ultimately found a very unsympathetic Pennsylvania Supreme Court which in the last four years has made two important, pro-environmental rulings with regard to Article 1, Section 27. In the final analsyis, Toll’s plan has not conformed with township codes as enumerated by the many witnesses (with regard to stormwater, resource protection, historic preservation, etc.), but more importantly, it has completely failed to meet the standards set forth in the Environmental Rights Amendment. This should be the preeminent consideration by the Westtown Supervisors. So in light of the massive evidence arrayed against the Toll Colony, the supervisors have an easy decision to reject it since the negative environmental impacts (among many other things) far outweigh any possible benefit of Toll’s proposal.
Turns out, we have a nuclear weapon in our arsenal called the Pennsylvania Environmental Rights Amendment. Passed unanimously by the PA legislature – twice – in 1969 and 1971 (190-0 and 199-0) and then approved 4 to 1 by the public,
November 29, 2017
As Judge Green in the Beaver Valley case wrote:
(a) “The board of supervisors, pursuant to Pennsylvania Constitution Article 1, Section 27, as trustees for the natural, historical,
and scenic resources under the stewardship of Appellee Township, shall:
(1) ensure the submitted application complies with the applicable laws and regulations affecting those resources;
(2) ensure the submitted application avoids or appropriately mitigates adverse impacts upon those resources to the extent
reasonably possible; and,
(3) to the extent those impacts are not avoided; refrain from approving the submitted application, where the board of
supervisors determines the harm clearly outweighs the benefits of the submitted application.
(b) In the event the board of supervisors determines the submitted application at minimum meets the three part analysis at
paragraph (a) of this order, the board of supervisors shall then consider the submitted application pursuant to the provisions
of the code of the township… and such other laws, regulations, or ordinances having application to the issues presented, and
render a decision as to the submitted application."
this constitutional amendment grants all Pennsylvanians the right to a clean, safe, scenic environment and states that government officials at every level in the Commonwealth are trustees of our natural and environmental resources. They thus have a fiduciary duty to protect us from environmental degradation. This is not optional, by the way. It’s obligatory. With one hand on the bible and another raised to God, all officials take an oath of office whereby they swear to uphold the Pennsylvania Constitution of which Article 1, Section 27 is a part:
If a psychiatrist were to put Toll Brothers on the couch and analyze them vis a vis the “Diagnostic and Statistical Manual of Mental Disorders,” there would be no denying a psychopathy diagnosis. According to the manual, traits of this disorder include:
• callous disregard for the feelings of other people
• the incapacity to maintain human relationships
• the reckless disregard for the safety of others
• deceitfulness (continual lying to deceive for profit)
• the incapacity to experience guilt
• failure to conform to social norms & respect the law
What if Toll eyed Gettysburg?
Westtown Supervisors would have a recent local precedent to guide them. The PA Environmental Rights Amendment was invoked in 2015 in the Beaver Valley Conservancy lawsuit against Concord Township. McKee Builders wanted to put 162 houses on 270 acres on both sides of Beaver Valley Road adjacent to the new national park in Chadds Ford and Delaware. A grassroots preservation campaign and subsequent lawsuit resulted in an unprecedented decision for Delaware County, with the judge ordering that the PA Environmental Rights Amendment be taken into account and that the “Vineyard Commons” development proposal be denied if its environmental harm outweighed any public benefits. The judge’s order in this case led directly to one of the largest conservation victories in Delaware County since the state of Pennsylvania seized 2,000 acres by eminent domain in 1967 to create Ridley Creek State Park. That, and the enormous grassroots campaign, inspired the Mt. Cuba Foundation to put up the lion’s share of the purchase price to save the land. Importantly, both Beaver Valley and Crebilly Farm have similar environmental constraints, but in terms of historical events, Beaver Valley had much less going for it than Crebilly. The Battle of the Brandywine was not fought in BV.
Toll, with its vast resources, has descended on Westtown and – “without regard to the feelings of people or the community in general” – proposed to destroy a critical piece of our history, degrade our environment, externalize many of their development’s costs to the community and school district, and permanently harm our quality of life. That Toll is the frequent target of lawsuits by homeowners, municipal and county governments, and others makes it difficult for them to claim they “care about the safety of others” or the common good. That they are frequently sued for repeated environmental violations* would suggest they have an “incapacity to experience guilt” and care little for social norms or the law. If they were capable of “maintaining human relationships,” they certainly would not have been sued for winking at subcontractors’ not paying overtime and underpaying workers.** Toll does what it likes, and when they get caught, the usually small fines and settlements are just written off as business expenses. This is not the behavior of a person who cares about the community.
Toll Doesn't Want You to Know
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