By Richard L. Gaw

Staff Writer

For those in southern Chester County who can't wait for the arrival of a long-proposed outdoor marketplace on Route 41 in Landenberg, their wait may be a little longer. For those who have protested against the idea of such development, whether in private or in a public forum, the latest decision concerning the concept known as White Clay Point is cause for jubilation.  

A request for an appeal by the Pennsylvania Real Estate Investment Trust (PREIT) to overturn a one-year-old order of the Court of Common Pleas of Chester County – one that ruled against PREIT's request to be allowed to convert the proposed White Clay Point development on Route 41 to a condominium form of ownership, without going through the appropriate procedures -- has been upheld.

The appeal was argued on Dec. 9, 2013 and reached by the decision of the Hon. Dan Pellegrini on Jan. 3, 2014. With the decision, the balance of scales tip again in favor of the Friends of New Garden, a grassroots organization made up of 16 township residents, who filed against PREIT and won for the second time in two years.

The group won its first land use appeal against PREIT in the Chester County Court of Common Pleas in Jan. 2012, that also opposed the idea of a condominium arrangement, stating that they had “an adverse, direct, immediate and substantial interest in how PREIT develops its property, including a substantial interest in being sure that PREIT and the (New Garden Township Board of) supervisors comply with the terms of the settlement agreement and applicable ordinances.”

In their most recent appeal, PREIT argued that the Friends of New Garden did not have the proper standing to challenge the Board's approval, “because they have no direct, immediate or substantial interest” in the type of ownership White Clay Point will have. Further, PREIT stated that the Friends of New Garden lack “procedural standing” to enforce the settlement agreement, because they are not linked to the settlement agreement, nor challenged it at any time. 

In the most-recen decision, Judge Pellegrini disputed PREIT's claim, and wrote in his argument that nearby property owners have a direct and substantial interest in the development. “Development near one's property will almost certainly bear some sort of effect on that property, whether from deceased property values, noise, pollution, traffic or a number of other factors,” Judge Pellegrini wrote. “...There is a casual nexus between the development and the effect of the Neighboring Property Owners' right to enjoy their properties.” 

The legal battles between the Friends of New Garden and PREIT trace their beginnings to Oct. 2011, when PREIT filed a request to waive the subdivision process for the creation of condominium units for the property, and on Nov. 14, 2011, before a large and vocal audience comprised mostly of township residents opposed to the plan, the board voted 3-2 in favor of granting PREIT's request to subdivide White Clay Point into condominium units. Those voting in favor of the ruling were supervisors Robert Perrotti, Bob Norris, and former supervisor Barclay Hoopes. Those voting against the waiver were supervisors Betty Gordon and Warren Reynolds. 

"I'm not surprised (at Judge Pellegrini's) decision," said New Garden board member Steve Allaband, who opposed PREIT's 2011 request while serving as a member-elect of the board. "I argued that the board didn't have the right to make that decision, but if the board had denied PREIT the waiver, then PREIT would have appealed."

Judge Pellegrini's decision is the latest ruling in the long history of the White Clay Point project that dates back to October 2001, when the township first received PREIT's conditional use application. Over the next two years, the Board of Supervisors imposed 97 conditions of approval for the project, which led to an appeal by PREIT in May 2003 which stated that 76 of the conditions of approval were “errors of law and/or abuses of discretion.” 

After several years of back-and-forth discussions, concept plans, and architectural, landscape and stormwater management renderings, the settlement agreement was reached between the Board of Supervisors and PREIT in November 2007. 

Cut into the fabric of this more than decade-long issue is the reality of the law measured against the reality of the economy. Because they own the property, PREIT has the authority to begin the development of the White Clay Point project at any time. Although it is mere speculation, the answers to why they haven't already broken ground could be found in the economic downturn of 2008, which forced developers like PREIT to hold their balance sheets closer to their vests. 

Over the past year, the company has engineered a "fire sale" of several of their complexes which have resulted in the reduction of its debt by $359 million. In 2013, PREIT sold the Christiana Center in Newark, De., the Commons at Magnolia in Florence, S.C., and the Paxton Towne Center in Harrisburg, Pa.

PREIT chief executive officer Joseph Coradino has stated publicly that PREIT was making efforts to reducing the company's debt, while at the same time de-emphasizing its attention to power center businesses, and placing its focus on developing its core mall portfolio. 

Repeated phone calls by the Chester County Press to PREIT officials over the last several months have not been returned.