Based on PA Municipalities Planning Code (MPC) It Appears That the Board of Supervisors St. Davids Golf Club Decision May Not be Legal!

Community Matters had over 2,200 visitors yesterday setting a new single day total.  In review of the statistics, it seems that people’s interest was about evenly divided between Monday night’s Board of Supervisor Meeting and the School Board Meeting. Many readers were left with more questions than answers in their review of the Supervisor Meeting.  With that in mind, I am looking for help from a municipal attorney to review the Board of Supervisors recent decision to return St. Davids Golf Club $25,000 escrow. 

I received the following comment from a reader which includes an excerpt from the Pennsylvania Municipalities Planning Code (MPC).  Reading the reference, I completely agree with the reader’s analysis that the actions of Supervisors Lamina, Kampf, Olson and Richter violated Tredyffrin Township code (which is based on Pennsylvania Municipalities Planning Code).  At the Board of Supervisor meeting, I questioned the supervisors if there was a written request from St. Davids Golf Club; they clearly acknowledged that the township had received nothing in writing.  Based on the MPC, it would appear that the lack of a ‘written request’ should have been the end of the discussion . . . a written request for ‘return of escrow’ would have formed the basis for the process to begin. 

Based on the MPC, I do not understand how it is legally possible for Supervisor Olson to make a motion, Supervisor Lamina to second the motion and then take a Supervisor vote on a matter that may not be legal.  I am confused – was the vote legal or not?  Supervisor Kichline (an attorney and former Zoning Hearing Board chair) certainly questioned the motion and the possible legalities, asking for further review from the Township Solicitor.  But wouldn’t Supervisor Kampf (an attorney and partner in the law firm of White & Williams) understand muncipal law and not cast a deciding vote on a questionable matter?  Supervisor Kichline votes against the motion to return escrow to St. Davids GC but Supervisor Kampf casts the deciding vote in favor.  I just don’t get it . . . as an attorney, why in the world would Supervisor Kampf participate in this process if there was any question? 

At this point, I do not have a definitive answer on the legality of the St. Davids matter but I am going to continue to work on it.  I am sending this post and reader’s comment to Tom Hogan, Township Solicitor and Mimi Gleason, Township Manager.  If they are unable to provide a clear response, I will contact the PA Attorney General’s office.  If there is a municipal attorney reading Community Matters, please offer your opinion.

Roger, on January 26th, 2010 at 8:54 pm Said: 

I was unable to attend the meeting, but have read the multiple accounts of this issue. In my humble opinion, the Board of Supervisors is in violation of their own Township Code, which is enacted under the authority of the PA Municipalities Planning Code (MPC). Feel free to reference the code for yourself here: http://www.ecode360.com/?custId=TR1485.

I would assume that the escrow account would be classified as a “Performance Guaranty.” While I believe the BOS COULD delegate some of this authority to the Planning Commission, it has chosen not to (which is entirely permissible. HOWEVER, Tredyffrin’s code plainly states:

“As the work of installing the required improvements proceeds, the party posting the financial security may request the Board of Supervisors to release or authorize to be released, from time to time, such portions of the financial security necessary for payment to the contractor or contractors performing the work. Any such requests shall be in writing addressed to the Board of Supervisors, and the Board shall have 45 days from receipt of such request within which to allow the Township Engineer to certify, in writing, that such portion of the work upon the improvements has been completed in accordance with the approved plans. Upon such certification, the Board shall authorize release by the bonding company or lending institution of an amount as estimated by the Township Engineer fairly representing the value of the improvements completed. The Township Engineer, in certifying the completion of work for a partial release, shall not be bound to the amount requested by the applicant, but shall certify to the Board his independent evaluation of the proper amount of partial releases. The Board may, prior to final release at the time of completion and certification by the Township Engineer, require retention of 10% of the estimated cost of the aforesaid improvements as per § 181-34D of this chapter.” Tredyffrin Township Code Section 181-34(G).

What is important in this provision??? Well, first of all the request for release of the funds MUST BE IN WRITING. Second, the BOS is given 45 days to refer the matter to the Township Engineer. The Engineer must CERTIFY IN WRITING that the improvements have been completed and also determine the AMOUNT TO BE RELEASED.

I would ask this:
1) Where is the request from St. David’s (well actually the entities doing the work there) for release of these funds?

2) Where is the report in writing from the Township Engineer?

3) Where is the estimated return amount determined by the Township Engineer?

4) Why was the normal procedural aspects (as was mentioned by Ray) disregarded here?

I am not well versed in this area, but to me it seems simple – there is a process that MUST BE FOLLOWED. With all due respect, the Supervisors must be held accountable for failure to follow their own code. The Supervisors do not have the authority to simply make a motion and dispose of an issue as they see fit with no procedures followed.

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19 Responses

  1. A few thoughts.

    First, what Roger cites is the Home Rule Charter, not the MPC. Nonetheless, the BOS is required to follow the HRC.

    For the record, it should be noted that Kampf, Lamina and Olson’s previous actions in soliciting donations for the fire companies in their capacity as members of the BOS was a violation of the HRC. See (§C-63(A)(2).

    In reading the HRC, I think it is absolutely clear that the in making and seconding the motion, Olson and Lamina violated the HRC. Second, in voting for the motion, Kampf, Lamina, Olson and Richter violated the HRC. Way to go EJ, only took you 2 meetings to do it!!

    Finally, this may very well be an act of malpractice on the part of the Solicitor Lamb McErlane.

    In reading the HRC, it does not clearly state whether an applicant must make the request. Note the word choice – may vs. shall. That said, if I were putting my judge hat on, I would have to defer to the BOS conduct in past cases. I believe in every other case, the applicant’s always petitioned the BOS to have escrows released. Given the nature of what the escrows represent, a petition is proper given the level of review that is necessary.

    In my legal opinion, the HRC was violated. Whether it was the text or the spirit thereof, it was violated.

    I would also pay close attention to Michelle’s careful analysis. She’s a pro at municipal law and set forth, in very clear terms, how flawed the process was.

    Simply put, there is a threshold issue of whether something is properly in front of the board. As I have commented on numerous times, the BOS operates without formal rules of procedure. That may seem odd and impossible – but that is exactly what has happened. And for the record, Lamb McErlane has allowed this to go on. Without procedural rules like Roberts Rules, organizations are essentially unguided missiles. The irony is that on Kampf’s watch when I pointed this out, he [Kampf] pledged to examine the issue. He never did…

    Bottom line, it’s a close enough call that an abundance of discretion was required. As we now know, Olson wanted this squared away now because he was leaving for a 2 week trip to Hawaii. Further, Warren wanted this squared away as quickly as possible to put as much time between his vote and the primary. Neither of these qualify as being relevant. Yet, these two factors played a big role in rushing the decision.

    Yet more reasons why the block of 4 needs to resign. Historically speaking, this block of 4 reminds me of the Coatesville Block of 4.

    • Agreed John. However, to be clear I was citing from the TT Code (not the HRC). You are very knowledgeable here so I defer a great deal to your analysis. However, as I understand it the TT Code is enacted as required by the HRC (Sec. 701 of the HRC) and in compliance with the enabling legislation – the MPC. Nonetheless, it is sort of a moot point because whatever you call it, it seems to have been violated.

      Also, I’d be interested to get a more detailed account of Michelle’s points made during the discussion.

      • I tend to collapse the two.. the code and the HRC. The key is that even if the MPC allowed something the HRC didn’t, the HRC controls. Just for reference, people can find the HRC here:

        http://www.tredyffrin.org/pdf/ordinances/home-rule-charter.pdf

        Michelle’s points centered on the process and how it has been applied in the past.

        There is simply no getting around the fact that the deal is corrupt. There was a conspiracy here between Kampf, Lamina, Olson and Richter. As for Kampf, professionally, he has the most to lose. As an officer of the court, he could very well be reported to the disciplinary board of the Supreme Court. His conduct here is about has unethical as it gets.

        Also note.. the University of Pennsylvania is a client of White and Williams – Kampf’s law firm.

        • Got it John, we are both on the same page then. Also, that is an important point, the MPC provides the broadest possible authority. However, the Township can exercise only that authority which it has properly “grabbed” under its HRC/Township Code.

          • Yes…that is the case. The HRC is a local constitution of sorts. A local government may place more restrictions on itself than would otherwise be allowed under the MPC. A good example is how vacancies on the board are dealt with. We just went through this when Bill DeHaven retired. Based on the date of his resignation and based on the requirements of the HRC, a special election was required. That special election would have occurred in May, 2009. As it turned out, the political parties got together and settled on John Shimrak to be a caretaker. Otherwise, you would have had to go through the bother of a special election and then a general election. There is one example of where the HRC has gaps. Another is the fact that no formal rules of procedures specified. Another is the meaning of the word “present”.

            It’s not a perfect document – but it is the one we have. In a very real sense, Kampf, Lamina, Olson and Richter did the most un-American thing you can do. In fact, they violated the very oath they took when they assumed office. For EJ, that was only 2 weeks ago.

            Folks should let that settle in for a moment…..

            The real problem with her is that she didn’t realize it. Rather, she went along with LOK and voted with them. She made a huge mistake.

            That said, she can rectify the mess very easily. Just as easily as Olson made the motion, she could make a motion as well to reverse what happened. My guess is, there are three other votes… ;) If she did that, I would actually respect that. Realizing a mistake and fixing the problem takes a lot of guts. It would show a lot of character. I don’t know that she has the courage to do that. She picked the wrong side on this one. And at the end of the day, people like LOK will stand by her side. They will abandon her just as they abandoned the Tredyffrin Citizens.

            So with that folks, people should work on EJ to get her to reverse her vote….

  2. But Roger, Bob Lamina is the greatest politician to ever live in a Tredyffrin home. He knows best and we must all bow down. Codes…we don’t need no stinkin’ codes!

  3. The escrow release request must be in writing – we know there was no written request as stated during the meeting; therefore the vote is illegal.

    I also believe the legality of the the BOS overriding the PC’s actions was discussed at various PC meetings last year. We need some input from PC members on this.

    Wonder why the Feb 1st BOS meeting has been moved to Feb 8th? Would love to know what’s going on. I have a conflict that evening, so I won’t be able to see the newest shenigans.

    • >>
      Wonder why the Feb 1st BOS meeting has been moved to Feb 8th?
      >>

      Happens to be the same night as the TESD Finance Committee Mtg.

    • Unbelievable. Are there no depths so low that these guys will not stoop to them?

  4. I think one basic question that has to be asked is whether the Lamb McErlane lawyer in attendance (Robert McClintock) was muzzled by the block of 4. At all times during Michelle’s statement, he remained silent. Did he agree or disagree? Perhaps he was concerned that the block of 4 could, at anytime, fire the Lamb firm.

    Folks..are you starting to see the problem here????

  5. Attn: Tom Corbett

  6. I would hope that contacts to the Attorney General’s Office includes a disclosure of the fire department donation campaign by the Board that potentially violated the Tredyffrin Home Rule Charter as Mr. Petersen has mentioned. There is a sad pattern here and I hope it stops.

  7. Perhaps we can ask the BOS if they had an executive session in advance of this meeting and see if anyone will admit if this was discussed. The solicitor would ha ve been present (I understand the regular man was only unavailable because of a health matter — not on a vacation). Under what rules would they have been able to discuss this in advance? Did Michele make her points then and have the solictor response. You can have private discussions if you are only receiving information — but no deliberations.

    • What can we do to ‘fix’ this injustice that just occured in Tredyffrin. Clearly, after watching the Board of Supervisor Meeting, there needs to be a reversal of the St. Davids decision. Where does the township solicitor stand on this? Let’s push for change.

      • As to a reversal of the St. Davids decision, in the immortal words of Rocco from Godfather II….

        Difficult….but not impossible….

        A few things would have line up. The next meeting was supposed to be this Monday. However, Lamina and Olson are out of town. So – the meeting is going to be up off. That would have left 5 – which is legal. The matter could have been reversed with a 3-2 vote. Olson and Lamina realizing this most likely, they put the meeting off until the next week. Olson still won’t be back. A tie vote won’t work. Anything else, you would have to dislodge one of the Block of 4 votes. Richter is probably the most vulnerable. People would have to work hard on her to see the error.

        Another option is for people to vote against Kampf in the 157th. primary. I am convinced that if he loses out to either Judy or Ken, that would send a loud and clear message. His political career would be dead. And I can tell you – his political career is very important to him. Which begs the question of why he voted the way he did. If you are a Democrat, you should consider holding your nose, register as an R so that you can vote against Kampf.

        Another option is to take out committee people. There is a comment from me up here to Cynthia Johnson. It discusses the E-4 and E-5 voting districts and vote requirements to take out Bruce Parkinson and Rob Betts – both TTRC members and St. David’s Golf Club members.

        it’s sad because political labels like Republican and Democrat do not mean much as far as this community is concerned. Whether D or R, most here agree on 90% of the issues. Unfortunately, in the primary process, Independents are disenfranchised. If you control the parties, you have a say in the candidates. The reason why EJ RIchter was elected was because of Republican control and Democrat indifference. The reason why Kampf has a shot at the 157th. is because he is on the TTRC and is politically entrenched.

        We have an opportunity to make history as a community to take definitive action from the outside – to send a message and force change. I thought about putting a petition together. If people want that, let Pattye know. If there is enough interest, I will put it together.

  8. Can I ask who employs the township solicitor? Is he available to township residents as taxpayers to ensure us that our BOS is operating under the law? Or is he only there to advise the BOS? Could Mimi Gleason request his legal opinion? She didn’t seem that comfortable with the decision either — though she obviously “works at the pleasure of the chair” ???

    • The solicitor serves at the pleasure of the BOS. At any time, the BOS can fire Lamb McErlane and hire another firm. And as regards to Mimi, she also works at the pleasure of the BOS.

      See the problem….??? Everything is in check because of the Block of 4. This is precisely what LKO engineered.

      The good news is that we are just one vote away from breaking the block. People have to hammer on Richter. She is the most vulnerable of the 4. I think she could succumb to public pressure. KLO are used to the environment. Richter is not.

  9. Does releasing the escrow money also release them from actually building the sidewalk? I realize that you hold the money as the carrot to do the work, but wouldn’t you also need to vote to release them from the requirement to do the work?

    • >>
      release them from actually building the sidewalk?
      >>

      Yes… as that was the only incentive for them to build the sidewalk. The act of releasing the escrows in effect, makes the township – AKA us the Taxpayers – now has the obligation to build the sidewalk. There is still a land development plan that has to be followed.

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