Upper Darby schools, Clifton get date for court battle
MEDIA COURTHOUSE >> A county judge has started to visualize a timeline for the ongoing legal feud between Clifton Heights Borough and the Upper Darby School District as the district issues plans to build a 160,000-square-foot middle school in the borough.
Judge Barry Dozor said at a pre-trial conference Wednesday on two civil suits – each party filing against the other – a trial date may be scheduled between February and April of 2020 to potentially remedy the legal quandaries between the two governing bodies. A trial date could be sooner if there is an opening in his schedule.
Dozor said he would schedule a whole day for testimony and evidence on the matter.
But, he forecasted that the legal proceedings may go on for two years, including any appeals for the two different suits.
“What’s ahead is money wasted on litigation, wasted delay,” he said. He noted that some residents will be paying double to continuously fight the battle in court, especially in Clifton Heights where their borough tax dollars go to legal counsel to fight the school district’s plan, and simultaneously their school real estate taxes support the district’s counsel to fight for their own plan. “From my vantage point there has been no effort to mediate a resolution.”
Dozor was originally assigned a land use appeal case filed by the district in late June that argues that a block of ordinances, 867, 868, 869 and 870, passed by the borough should not apply to the district’s land development application for procedural violations surrounding their enactment on May 28 by borough council. The borough filed a declaratory judgment case on Aug. 7 asking the court to make a ruling as to whether the borough’s planning commission and council should apply those ordinances to the application (these ordinances significantly hinder the district to build a multi-story school building). The judge consolidated both cases into Wednesday’s conference.
All of this is a legal tugof-war that ensued after the school district announced its intention to build a muchneeded new middle school in the borough, on athletic fields many borough officials and residents consider sacred ground. The site off Springfield Road is the home to many borough youth sports events as well as the annual July 4 celebration.
“It’s obvious they have a similar request, that being what are the rules of the road?” is how Dozor summed up the dueling cases. Dozor eventually said both parties are seeking the same type of judicial relief regarding the ordinances: do they not apply, or are they effective?
At pre-trial, a portion of the discussion regarded an Aug. 13 letter sent by Andrew Stoll, a lawyer from the district’s solicitor firm Fox Rothschild, LLP, to Clifton Heights Borough Manager John Perfetti that formalizes an agreement between the two parties to give the borough through Oct. 31 to take action on the school district’s land development application. Clifton Heights Solicitor Frank Catania at pre-trial said this letter was written by Stoll and Clifton’s Zoning Hearing Board Solicitor John McBlain.
The letter states that the May 23 application that was submitted by the district to the borough will be revised and sent back for consideration within four to five weeks. The revision comes after two review letters were issued on July 1 and Aug. 5 from Kelly & Close Consulting Engineers and Surveyors pertaining to the civil and traffic engineering study. The borough planning commission will revisit the project on Oct. 2 and borough council on Oct. 15 according to the letter.
Dozor said he would issue a court order regarding this extension if the parties agreed that neither one will be prejudiced by this delay.
“I don’t want either party delayed for ordinance requests and things of that type,” he said.
Clair Wischusen, also of Fox Rothschild in representing the district at pre-trial, and Catania agreed to the Oct. 31 extension.
“I’m encouraging the parties to find a pathway,” said Dozor. “Both of you represent the same residents, they’re being doubly taxed. There’s no denying everyone wants what’s best for the kids and the school district.”
Catania said after the pretrial conference that it was just a procedural event in the case.
Kyle Berman, Fox Rothchild’s lead solicitor for the district, also called it procedural and said he was supportive of the court’s help to find a solution.
Dozor, knowing the urgency of the cases, said he would be helpful with either party to find a resolution.
District spokesperson Aaronda Beauford said Thursday afternoon the district administrators were not yet briefed by their solicitor on the pre-trial conference and had no comment yet on what a 2020 trial would mean for their proposed middle school timeline.