Pennslvania Attorney General

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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