Concord zoning dispute to be settled by outside judge
The Delaware County Common Pleas Court is bringing in an outside judge to hear arguments from Concord Township and resident David Cleary about the availability of certain documents related to a decades-old zoning issue.
A Sept. 17 letter to Cleary and township Solicitor Hugh A. Donaghue from Civil Court Administrator Nicole M. Brungard indicates visiting Senior Judge John L. Braxton will oversee the case, beginning with Cleary’s response to a pending petition filed by the township in Common Pleas Court in August.
The dispute stems from a “legal, non-conforming use” designation provided to some businesses operating in the township in residential areas, specifically Cappelli Excavating Co. Inc., which previously operated at 139 Schoolhouse Lane.
The business was owned by Dominic Cappelli, brother of Common Pleas Court Judge Richard Cappelli. It has since been sold to another similar business that continues to operate at the location.
Common Pleas Court President Judge Kevin F. Kelly said the Civil Court Administrator’s Office brought the case to his attention when the petition was filed and identified a potential conflict, suggesting it might be improper for any Delaware County judge to hear the matter.
Kelly determined it was appropriate for the Delaware County board of judges to recuse itself and requested the Supreme Court to assign an out-of county judge to hear the case.
Donaghue explained that around the turn of the millennium, some businesses that had historically operated in residential areas of the township were granted variances to continue on as long as the business remained essentially the same.
He said that these variances effectively allowed a chicken or mushroom farm to remain operational, but that same parcel could not later be developed for a different commercial use such as a retail business or big box store, for example.
Cleary, who also lives on Schoolhouse Lane, began requesting records related to the former Cappelli property in March, including “all (township) files, documents and records that reflect zoning changes or variances,” as well as any records indicating any lawful uses of the property outside of its designated residential zoning.
He also sought “all documents and records” generated by the township solicitor referencing a
1999 Commonwealth Court opinion that found Cappelli could not operate his business at that location under then-current zoning regulations. That opinion overturned a 1994 Common Pleas Court opinion that found Cappelli had not violated the zoning ordinance and had a “vested right” to use the land as a commercial enterprise.
“Concord Township is not able to provide any credible document that says whether the business operations ceased or how they went and got a zoning variance or appropriate documentation,” said Cleary.
Donaghue declined comment on the current issue due to its ongoing status, but did provide a June 2010 letter to him from attorney Kenneth D. Kynett, who had been retained by Cappelli in
2000 to work with the township in responding to the Commonwealth Court order.
The letter notes the township amended its code in December
2001 to permit a “historic resource dwelling, barn, outbuilding or other building as defined by the historical resource map … to continue any use in existence for a continuous period of not less than 25 years.”
Kynett opined that because the property met those requirements, its commercial use had become legally permitted under the township code.
The township notified Cleary that the records he had requested in March were available for inspection May 2 and he visited the township offices May 4 to review the file, according to court records.
But Cleary was unsatisfied with the response and filed an appeal with the Pennsylvania Office of Open Records. The OOR allowed both parties to supplement the record and later requested that the township provide additional evidence.
Donaghue provided several letters from 2010 and 2011 documenting Concord’s responses to similar prior requests from Cleary, a copy of the 2001 ordinance passed in response to the Commonwealth Court opinion and a printout of docket entries in that case, according to the OOR order.
Township Secretary and Right to Know Officer Amanda Serock also submitted a supplemental affidavit indicating she had found a legal file containing several documents from 1999, including a letter from former Concord Supervisor Howard Gallagher to other supervisors; a letter from an attorney representing Cappelli’s neighbors in the Commonwealth Court case to former Concord Solicitor John Wellman; a letter from Wellman to the township manager at the time; and a copy of a proposed agreement between Concord Township and Cappelli.
The township argued that these documents were not public because they dealt with internal discussions, were of a noncriminal matter, or were covered by attorney-client privilege. The OOR disagreed, however, and ordered that the file be made available to Cleary.
Concord then petitioned the Common Pleas Court for a judicial review of the OOR order, arguing it was not supported by any substantive or probative evidence. The petition claims the OOR violated due process considerations in deciding the appeal and requested a full briefing before the court.
The Sept. 17 letter from Brungard indicates Cleary’s response to the petition will be due to Braxton by Oct. 9 and Concord Township’s brief is due Oct. 30. Cleary’s brief will be due on Nov. 20.