Developers use courts to SLAPP down citizen objections

Posted by By at 30 September, at 09 : 44 AM Print

It almost sounds like a football metaphor. The big guy SLAPPing down a smaller opponent on the way to the goal line.

It is a concept many municipalities across the commonwealth are too familiar with. A big developer comes to town and runs into problems getting township planners to accept his proposal for a few hundred houses. He lets it slip, or sometimes says in public statement, that he has more money and more lawyers then the municipality can afford.

Too often, the township is forced to back down.

Sometimes it happens to individuals, especially individuals who voice environmental reasons for blocking “progress.”

But sometimes the individuals are immune from such suits, and may even be reimbursed for lawyer and other fees they spend defending themselves from Strategic Lawsuits Against Public Participation. It is a concept so widely recognized that many of the 50 states and Canada have laws granting their citizens immunity from the attacks – though the laws vary according to state.

Which doesn’t stop company lawyers from trying to, as some folks with whom I once shared a poker table said, “buy the pot.” For non-poker players, that means putting in so much money everyone else has to drop out of the game.

SLAPP is when a company sues to halt discussion intended to lead to government enforcement action on real or perceived environmental transgressions. In that very narrow instance, the Pennsylvania Supreme Court said in January, one is immune from a company making a strategic decision to use the courts to block public participation in enforcement of environmental matters.

As long as the discussion is about environmental violations, a company trying the tactic could not only be sent home, but made to pay court costs and fees from the people who had to spend time and treasure to defend themselves.

Case 1:

That ruling marked the end of an effort by a Pennsbury Township resident to block roads for a residential development being run through a parcel the township had purchased through Chester County’s Heritage Park and Open Space Municipal Grant Program.

Aaron McIntyre, of Pennsbury Township, Chester County, in public meetings and in email, tried to get the county commissioners to halt the road placement in the area officially preserved for parks and open space. The developer, Pennsbury Village Associates, sued McIntyre and others, saying they had interfered with contract negotiations between PVA and the township.

In January this year, the state supreme court ruled in favor of the developer. The court found that McIntyre had not been complaining of environmental violations, which likely would have made him immune from PVA’s suit. Instead, he had signed onto an agreement that allowed the township to determine where, or whether, development roads would be placed on the parks and open space property.

And when he did complain to the commissioners, the court noted, his stated reasons were that the grant money was meant to preserve the land, and that allowing roads in the area would adversely affect stormwater runoff – not that any environmental harm would come if the rules were not enforced.

Case 2:

Three Luzerne County families filed suit last week to stop a 24-inch pipe planned to cross the subdivision in which they live. William and Patricia Watkins, Scott and Kelly Watkins and Jeffrey and Jo Ann Dickson, all of them residents of the Goodleigh Estates development, sued a neighbor they said violated deed covenants by agreeing to allow the pipeline.

In a case of “I’ll see your county court, and raise you a federal jurisdiction,” the pipeline builder, Chief  Gathering – a sister company of Dallas, Texas-based Chief Oil & Gas LLC – immediately filed a countersuit in the higher court. In addition to added expenses and delays, the company claimed the three families defamed the company, and should be made to pay punitive damages.

Chief said that if the three families are successful in county court, the pipeline company would incur nearly $20 million in delays and expenses developing an alternative route around the Goodleigh community.

The pipeline is intended to collect Marcellus Shale gas produced from wells in Lycoming and Wyoming and connect it with a 50-year-old Transco pipeline that runs within 1,500 feet of Dallas district schools on its way to New York energy consumers.

Profit is a good thing. A company that doesn’t show a profit goes out of business, and its employees hit the unemployment line.

A company that has money to sue people who don’t want to sell their land simply because it’s less expensive on the construction budget to go through than around the bothersome landowners clearly is not short of cash.

And those who object on environmental grounds should be aware that the Commonwealth’s highest court does not seem to recognize that open space conservation and stormwater runoff controls are, in fact, environmental concerns.

Photo by Sean_Marshall
This post was written by:
- who has written 169 posts for Rock The Capital
John Messeder is an award winning journalist with more than 35 years experience writing about education, environment and local government issues. He has lived in Maine, Florida, California and Alaska, and, by temporary turns, numerous places in between. John also is an accomplished photographer, and avid hiker, conservationist, oral history buff, and author of several books he has not yet got 'round to writing. He lives in Adams County, Pa., just over a hill from Gettysburg, with his wife and Golden Retriever. He may be contacted at - Email jmesseder

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