TE School Board’s proposed fencing at VF Middle School costing taxpayers thousands of dollars, Tredyffrin Township Solicitor and Board of Supervisors now involved

legal feesThe legal bills to the taxpayers continue to mount because of the TE School Board’s fencing decision at Valley Forge Middle School.

Last week, residents of Green Hills in Chesterbrook sought a compromise at a meeting with members of the District’s Facilities Committee, (Pete Motel, Liz Mercogliano, Kevin Buraks and SB President Kris Graham), Art McDonnell, Dr. Gusick, attorney David Falcone of Saul Ewing, Tom Daley of Daley & Jalboot Architects and the District attorney Ken Roos, regarding the planned 6-ft. chain link fencing.

In addition to the homeowners, attorney Brian Nagle of MacElree & Harvey represented Chesterbrook Civic Association and Michael Gill of Buckley, Brion, McGuire & Morris represented Green Hills Homeowners Association at the meeting. The meeting ended with no compromise to the proposed 6-foot chain link fencing.

Agreeing that proposed fencing violates the terms of the 2002 agreement with the Chesterbrook Civic Association, attorneys Nagle and Gill filed official Complaint letters with Tredyffrin Township yesterday on behalf of their respective clients.  The letters were sent to Tredyffrin Township’s solicitor Vince Donohue with copies to the Board of Supervisors and Township Manager. (Click here to read Nagle’s letter; click here to read Gill’s letter).

After reviewing the records, attorneys Nagle and Gill each concluded that the proposed fencing would violate a condition which Tredyffrin’s Zoning Hearing Board imposed on TESD in granting the 2002 Special Exception. The Special Exception does not permit the installation of a fence in the 250’ buffer area next to the Green Hills homes.  In his letter to Donohue, Gill states that “ … TESD’s present proposal to introduce an invasive and visually offensive fence into the agreed upon 250 foot buffer is a material change to the development to which our clients agreed and requires the Zoning Hearing Board’s approval.”  Gill further states that, “…the Township must not permit or otherwise allow that proposal to succeed.”

With this official Complaint letter, the School Board, under the leadership of Kris Graham, has caused additional costs to the taxpayers to defend their proposed Valley Forge Middle School fencing project. In addition to paying legal fees to the District’s attorney Ken Roos and to Saul Ewing attorney David Falcone, taxpayers can now add the legal fees of Tredyffrin Township solicitor Vince Donohue to the cost of fencing at VFMS. Plus, the TESD taxpayers of Green Hills in Chesterbrook must pay the legal costs of Nagle and Gill.

Here’s my question to the members of the TE School Board – when is this going to end? This isn’t YOUR money that you are using to defend your decisions, it’s OUR money – it’s the taxpayer’s money.  School Board, how many thousands more taxpayer dollars are you going to spend on legal defense of your decision?

Kris Graham, as President of the School Board, we challenge you to lead!

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29 Comments

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  1. On top of all the expert and legal fees now add the fence contract….TESD put it out for bid and accepted it before this matter was even settled.

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  2. TESD is planning to block access to the community across rural conservation zoned property that is deed restricted for community use. This affects all the citizens across VF Rd. as well as Chesterbrook, as they intend to fence off the sidewalk that runs along VF Rd. and prevent citizens from using it.

    People are passionate about this, as there are viable alternatives that respect everyone’s rights (See Pete Stanton’s Green Line plan on this blog), but TESD has been bullying its tax paying citizens and disregarding all input.

    The only way left to stop them is by asking Tredyffrin Township to enforce the legal rights of its citizens.

    I hope the voters are paying attention.

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  3. Good for the community representatives and such a shame it came to this. The “Fix” seems so easy and the local residents seem more than willing to compromise. Here’s hoping the legal remedies work out for them. I drove over to Green Hills this weekend to see it all for myself…no idea how some of these homes got built that close to the property line unless there was “some” agreement in place. This makes a lot more sense to me now reading these legal challenges/history. Good luck to you all….

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  4. Respectful Resolutions comments are on point and correct.. the pattern of bullying without real input needs to stop.
    Safety and security of the students needs to weigh heavily here..the point about the fencing on Valley Forge Road being planned for outside the existing paths is patently unsafe for kids crossing from across VF Rd. And not to mention that this plan cuts off that walking path from any resident walking up from Green Hills.
    I hope that the Tredyffrin Township Supervisors are taking this as seriously as their constituents are..and will force the School Board to abide by the law.
    THIS voter is paying very close attention..

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  5. As a parent of elementary school aged children, I’ve yet to meet one parent that finds the new fencing worthwhile.

    Would it be valuable to start a petition on Change.org that residents could circulate through their community email groups? I imagine it would be valuable information for the board members to see how many oppose their actions. It would also make it much easier for residents to comment and express their voice directly, especially if it’s not possible for them to attend a meeting.

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  6. A 4′ or even a 6′ fence will not provide any meaningful security for the schools. I’m 71 years old and even I can jump a 6′ fence.
    I have been paying TESD ever increasing taxes for 35 years. I just don’t get why this expenditure needs to be made.

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  7. I have read the letter from Mr. Gill. Overall, I’m sympathetic to the resident’s position. However, there are at least 2 problems from what I can see.

    First, there is nothing to indicate that a fence and a buffer are mutually exclusive. In other words, as long as the TESD re-establishes the buffer (vegetation, trees, shrubs, etc.), even if there is a fence, I suspect the school district has met its burden.

    Second, the agreement doesn’t define “material change”. Because there is no definition within the agreement, this provision has to be construed as narrowly as possible.

    All of the text around inconveniencing the public, aesthetics, etc., there is really no legal basis for that. it makes for good copy, but ultimately, there is no legal bite to that.

    Bottom line, I think the buffer and the fence can co-exist.

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    Chesterbrook Watchdog Reply:

    Observer… your commentary doesnt seem all that sympathetic to residents, in fact, you seem to be giving the serious benefit of the doubt to TESD. Full disclosure I am not an Attorney myself, so my opinions are just that… opinions. From the 2002 discussions and agreement with TESD and Chesterbrook Civic Association, a fence was originally proposed as a means to wall off the residents from playing fields. The fence was eventually negotiated out of the final solution, so, placing a fence where TESD wants to now,would IMO, constitute a material change from the intent and letter of the 2002 agreement. From the original deed..if you havent read, you should..there are specifics items that this parcel can be used for and what can be built on it and fencing is not one of them.

    Bottom line: a fence is incompatible with the letter and intent of a buffer.

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    anotherPOV Reply:

    Seems a bit harsh. I think the only thing in the comment is that there are potential issues here. Is it 100 % inconceivable the township wouldn’t or couldn’t side with the district? Isn’t the purpose of the buffer to help shield against noise and other nuisances? It’s not as though residents have free and unobstructed access to school property. These things are never black and white.

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    Ray Clarke Reply:

    Even if the the courts find that the agreement does not preclude a fence in that buffer zone, the Tredyffrin RC zoning ordinance requires that any fence be consistent with the character of the abutting neighborhood.

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    DaylesfordResident Reply:

    Except in that case, the ZHB can grant a variance. The residents can certainly challenge that. The zoning only mandates height and setback requirements. If the school board wants to put up a chain link fence, they can do so. Also, if what abuts these other properties is actually the side yard (even though it may appear to be a backyard), then 6 foot fences are allowed as a matter of right. The district is institutional. There may be other rules that can apply.

    The ZHB already granted a variance on storm water a few years ago. In that case, a faustian bargain of sorts was struck because as bad as the stormwater problem is, the community was willing to the tradeoff to keep the tennis courts.

    With that in mind Ray, your comment implies that the main objection is over the look, not the fence itself. Digging into this more, it is almost certain the township will conclude that the presence of a fence and a buffer zone can co-exist.

    Seems to me the only negotiating point, if there is any, is in how far back the fence has to be from the property line. I know for a fact that in the case of township parks, there are fences directly on the property lines.

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    Ray Clarke Reply:

    “The zoning only mandates height and setback requirements. If the school board wants to put up a chain link fence, they can do so.”

    Check all the way through the RC ordinance and its references.

    “…your comment implies that the main objection is over the look, not the fence itself”

    As far as I can tell, the main objection is a breach of the conditions established by the ZHB for the installation of the sports fields.

  8. I’ve read both letters and both are, in all material respects identical. The problem as I see it with these letters is that no section of the zoning ordinance is cited. That tells us, without looking at the ordinance that in general, a fence would be allowed. The argument here is one of promissory estoppel. In other words, the cb civic assoc claims that a firm promise was made to never erect a fence. No such promise was ever made.

    Another point made here in other comments is about what constitutes a material change. Also, this order was issued 15 years ago. Nothing says that such agreements can’t be modified. The. Public does not have an absolute right to access and use the school property.

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    Chesterbrook Watchdog Reply:

    A couple of points..Yes, the the letters make the same basic points; the primary one running through both is that there is a valid, in-writing promise made under oath by the Attorney for the School Board, written into the record (and not subsequently denied by the School District). This is where your contention of “promissory estoppel” as the rationale for not being able to build a fence falls apart a bit.. Here is the definition of “promissory estoppel” as per legal.com.. You’re probably a lawyer, right,? ..so correct my interpretation if you’d like..

    “n. when a person makes a false statement to another and the listener relies on what was told to him/her in good faith and to his/her disadvantage.”

    -no false statement was made (‘able Counsel here will say if its true’)
    -the “listener” (rather the reader) is relying on a document memorializing the true statements that were made,
    -the “listener” (rather, the reader) relies on the true statements for their “advantage”, not “disadvantage”

    The specific word “fence” may not have used in the final statement, but contextually, given the entire negotiation transaction, as examined by anyone caring to review the entire situation, fencing would not be a permitted item to be built in this area…it had been requested earlier in the transaction, and the request was subsequently withdrawn.

    The word “moat” was not in the final verbal-to-written-into-record agreement..guess that would be permitted to be built then, right?

    Final point..Agreements can change, yes…(13 years ago, not 15 BTW)..they can be modified through negotiation and accommodation, not unilaterally.

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    DaylesfordResident Reply:

    The better explanation for you is this one:

    Promissory Estoppel

    In the law of contracts, the doctrine that provides that if a party changes his or her position substantially either by acting or forbearing from acting in reliance upon a gratuitous promise, then that party can enforce the promise although the essential elements of a contract are not present.

    ———-

    In this case, the residents belief the district has changed it’s position substantially. The question here is what exactly was the promise? What exactly did the district agree to in 2002? In essence, the residents are arguing that the district is “estopped” from putting up this fence. They have to go down this road because there is no clear cut term the residents can point to. As you said, the context matters. As the old saying goes, what’s good for the goose is good for the gander. The district can rely on context as well.

    As to your moat reference,unlike a fence, a moat would not be a permitted use. A fence, insofar as a school is concerned, is allowed under the ordinance and is a reasonable and foreseeable element.

    It could be the district want to clearly mark the boundary (which by the way, under the Tredyffrin Zoning Ordinance is a permissible use of a fence) to both make clear where the district property is and to discourage people from accessing the property.

    As for safety, nobody I’ve seen here is qualified to assess the efficacy of a fence in that regard. You’d have to have an expert for that.

    On the changing of contracts, in land use, changing circumstances, laws, etc. often bring about a change. That agreement from 13 years ago was about a buffer to accommodate residents for the new fields. That was the essence of that conditional use. A fence doesn’t impede that. Sure, the school may have to rip some things out, but they’ll need to replace it. Same thing happened with the DVFS. They put up a new field, lights, fencing, etc. A big part of the buffer went away. The school had to replace it.

    Here’s the bottom line and I’m sure the residents won’t admit it. The lawyers I’m sure told them their case is not the strongest. These residents being able to access the school property is not a right they have. Technically, a resident steps on that property without authorization, they are a trespasser. It also wouldn’t surprise me if some residents have been witnessed treating some school property as if it were their own. Another good reason for the fence.

    Folks might as well get right with it. The fence is going up.

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  9. DaylesfordResident
    A fence, as a matter of opinion, is allowed or not allowed under the ordinance and it is anything but reasonable, and is not a foreseeable element. Nobody wants the fencing, except for the facilities chair who for whatever reason (he’s stepping down and wants a legacy?) is forcing this through against the will and wishes of tax paying citizens who don’t want it. No one cares if tax paying residents access the property. No one cares if it isn’t clear where the boundary line is between school property and a home owners property. No one cares if home owners treat the property (not that they have)as if it is there own. People are on school property all the time, day and night. I don’t see the police or anyone else throwing them off. It has been this way for 50 years and could be the same for another 50 years if not for 1 or 2 who think they own the district and make decisions that no one agrees with. It is very petty and very misguided: not well thought out and there is no rational argument for this action.

    You say, “the residents being able to access school property is not a right they have” What are you talking about? It is a right, has always been a right, and that’s why the fences are going up. 2 people want to take that right away by denying access by erecting an ugly fence which keeps tax paying citizens out. It’s absurd. You say they are trespassers? The school Board is making them trespassers by erecting the fencing. No one was ever a trespasser for being on school property. Are you a School Board Director? You sound just as arrogant, separate and smug.

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  10. Actually RationalResident I believe you are wrong. It was the Community Safety Committee that recommended 6 foot fences around all the schools a couple of years ago. I don’t know who was/is on that committee but it isn’t a TESD committee. So, a Community committee makes a recommendation to the school board, they don’t implement it, something happens, who will you blame then?

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    Chesterbrook Watchdog Reply:

    actually what I think the affected residents don’t want is fencing several feet from their back doors, out of sight of the actual school building, offering no security whatsoever, and only serving to mark a border..warning signs at the border serve the same purpose without inhibiting trail/walking path access as Rational Resident describes. This VFMS property is totally different from the other school properties, and needs to be treated accordingly…it is the only TESD property that has a Rural Conservation (RC) zoned area as part of its property. This is a flat out , illegal attempt ti inhibit access that has been enjoyed by Tredyffrin residents for decades. That property has built-in and augmented protections (as agreed to by TESD) to not permit any further development/construction, etc)..It is as black and white as that..

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    DaylesfordResident Reply:


    actually what I think the affected residents don’t want is fencing several feet from their back doors

    Exactly. It’s an aesthetic issue for them. The property line is where it is. These people couldn’t care less about the Rural Conservation issue. It really doesn’t matter as the fence has nothing to do with that issue.

    It’s anything but black and white and you’re going to find out pretty quickly where the matter is tipped in the favor of.

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  11. I am not wrong. Nothing has happened for 50 years. We’re “fixing” a problem that does not exist. Residents don’t want it. We’re not Lower Merion or Radnor whose locations are urban. Our district is very safe. Our schools are located in neighborhoods.

    A fence is not going to keep out a person who wants to do harm.

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    DaylesfordResident Reply:

    You are kidding yourself if you think we are not as urban as Radnor and Lower Merion. Seriously, do you think Harriton High in LM is in an urban center? It’s statements like yours “RationalResident” that indicate why your position cannot be taken seriously.

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  12. Shining Light Reply:
    March 19th, 2015 at 11:49 AM

    Steven,

    Go to the TESD.net website under School Safety. It states,

    The District safety committee’s members include parents, a school board liaison, teachers, students, administrators, counselors, community members, representatives of the Tredyffrin and Easttown Police Departments, and a member of Town Watch.

    I attended a safety committee meeting a couple of years ago. I sat in the audience, but sitting around the committee table were teachers, administrators, police and coaches. I saw one parent and because I knew the parent I approached the parent and asked the parent why the parent was there. He/She was there to represent a community group that he/she belonged to.

    I wrote an e-mail after the meeting, asking why the committee represents to the public that parents and community members are on this committee when that is not true. I did not receive a response. The next and last safety committee meeting is May 13, 2015 at 1:30 at the TEAO. Just so you know though, they don’t talk about much at the meeting. The committee meets privately before the public safety committee meeting, , and sites security and confidentiality as reasons for not revealing much at the meetings. That’s why I did not go back.

    ———————————————————

    Steven, As I stated to you on March 19th above, there were no community members at the Safety Committee meeting. The safety Committee is mostly police and administrators. It is mostly a School District Committee. I don’t know if the police had input into this decision, my guess would be they did not.

    It most certainly IS NOT a community committee.

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    Chesterbrook Watchdog Reply:

    Certainly not a committee with transparency either..when concerned residents requested the Safety committee findings which led to the recommendation for this fence , under “Right to Know” they were denied by Art McDonnell…he cited ‘security issues’ as his reason…Huh? Could it possibly be the findings dont jive with the Fence plan that TESD Facilities is pursuing? Just askin’…

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    Steven Bradley Reply:

    So you know for a fact that none of the teachers live in the community, none of the administrators live in the community, none of the coaches live in the community and god forbid if any of the police live in the community. Since you know everthing then should be able who were on the committee and where they live.

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    Shining Light Reply:

    Steven,

    I know for a fact the head of the Safety Committee does not live in TE. I know what district he/she lives in because he/she told me.

    I know for a fact Dr. Waters does not live in TE. I know Dr. Waters.

    I know for a fact the teachers I spoke to do not live in TE. My children were in their classes.

    The coach/teacher lives in TE. I know him. He coached my son.

    At that time, I believe only one Admin. working at district offices lived in TE, and that was Sue Tiede who has since retired. I don’t recall Sue being at the meeting but I could be wrong.

    I do not know if any law enforcement officer present lived in TE.

    Even if there were a few teachers or 1 or 2 administrators or Law Enforcement Officer(s) present who lived in TE, I don’t consider them as candidates for representing the Community Member Segment. Their employment situation would bias them towards having to agree with The School District view, which renders their participation in the Community Member segment as a Direct Conflict of Interest.

    I like your point about administrators and teachers living or not living in the District. Think about this- Dr. Gusick (new Supt.) does not live in the District, Dr. Waters does not live in the district, Art McDonnell does not live in the District. I’m not sure about Robin McConnell, but these are the people who determined that our taxes increased 35% over the last 10 years. And guess who has received unbelievable pay increases over that time while valuable employees have been outsourced, student programs have been cut and class sizes have risen. Last summer, I lobbied hard to be a part of the focus groups created to pick the new Supt. I was turned down by every School Board Director I contacted. I then wrote to all of them stating that I thought it was in the best interest of the Community to hire a Supt. who lives in the Community and I advocated for two very different but both highly qualified people who live in our District.

    I stick by my statement that there were no community members on the committee representing citizen tax payers.

    I did not say I know everything, but I believe I know plenty.

    #No reason to get so huffy.

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  13. The further West you travel along Lancaster Ave., the more rural it gets. Low Merion is Urban, Radnor is less Urban than LM but more Urban than TE.

    TE is rural but less rural than West Chester and Downingtown.

    The geographical, rural location of TE Schools do not require that fencing be constructed around any of the buildings, and it has been established that the fencing is going up to mark boundary lines anyway under the guise of protecting the children, so the point is moot.

    Your attitude is small minded, petty and mean.

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