Holy Ghost Church - St. Peter's Development hearing - "Poor preparation" drags out church housing project hearing

'Poor preparation' drags out church housing project hearing

Thursday, July 30, 2009

By Dennis J. Wright, dwright@pottsmerc.com

PHOENIXVILLE — Borough Council voted unanimously to continue the conditional-use hearing regarding St. Peter's Housing Development Corp. proposal due to, in council's terms "poor preparation."

The two-hour conditional-use hearing featured testimony by the applicant, Rev. James Evans, developer, St. Peter's Housing Development Corp., a recess, an executive session, no public comment, and a berating regarding missing exhibits.

At issue is the 1.9-acre parcel at Starr and Bridge streets, which Holy Ghost Orthodox Church wishes to sell to St. Peter's Housing Development Corp.; however, it isn't clear that the church owns the property. The property appears to be owned by the St. Nicholas Brotherhood, founded in 1938 to hold title to the property, and which was donated to the church by the Reeves family, majority holders of the former Phoenix Steel Co. The brotherhood leased the property to Holy Ghost Church for 99 years beginning in 1941.

A lawsuit regarding proper ownership was filed in Chester County Court on July 13.

Prior to the conditional-use hearing, borough solicitor Andrew D. Rau stated that the borough would take judicial notice over the dispute of the owner of the property. He asked that Scot R. Withers of Lamb McErlane P.C., West Chester, be known for the hearing as representing the Brotherhood.

Mark C. Clemm of Morris and Clemm P.C., Plymouth Meeting, representing St. Peter's Housing Development Corp., immediately objected.

Withers said that he represents the Brotherhood and is awaiting a decision from Judge Edward Griffith.

"We contend that they are not the property owner," Withers said.

Clemm asked the council to recognize Holy Ghost Church as a party to this hearing.

Rau replied that the council's role is zoning in this hearing, and that any approval should be presented via judicial notice with the proper ownership.

Clemm said that there is a lease between Holy Ghost Orthodox Church and St. Nicholas Brotherhood. He stated that there is a sublease between Holy Ghost Orthodox Church and St. Peter's Housing Development Corp.

"St. Peter's has standing to pursue this," he said. "Ultimately it doesn't matter about ownership. We can still seek conditional use."

Withers responded, "The basis of the agreement — the lease is valid between the Brotherhood and Holy Ghost."

Rau asked Clemm regarding the number of witnesses he would have testifying, to which Clemm said he would be presenting two of them. They are Reverend James Evans, developer, and Anthony Hibbeln, P.E., of Hibbeln Engineering Company, LLC.

Rau asked Clemm about Evans being a witness considering Evans' status as a member of the borough's planning commission.

"He took no part in any decisions regarding this as part of the planning commission," Clemm replied. "He has the right to be a developer."

Clemm began the hearing mentioning the various exhibits that council members were to look at. However, all of the exhibits that Clemm spoke of were not included in council's packets for the meeting.

Some of those exhibits include another agreement with Holy Ghost Orthodox Church and St. Peter's Housing Development Corp.; a sublease to allow St. Peter's Housing Development Corp. to lease land from Holy Ghost Orthodox Church; additional changes to the project plan; historical information and studies; and traffic information and studies..

Evans testified first, stating that St. Peter's is a non-profit housing organization.

"We provide housing under HUD for those who are 50 percent or below median level," Evans said. "We operate two facilities in Phoenixville and one in Delaware County. It is intended for senior citizens or people under the age of 62 in a wheelchair who are declared disabled by the Social Security Act.

Evans said that St. Peter's has been incorporated for 27 years, and one of his facilities, St. Peter's Village, will be celebrating its 25th anniversary in October. When asked about his familiarity with Phoenixville, Evans said that he has lived in the borough for 35 years and has been a member of the planning commission for two years.

Evans testified that he was approached by Norman Trudel regarding expanding St. Peter's Village to another site.

"He recommended the Holy Ghost land," he said. "It is an excellent site, and it would be in the best interest of the community. I participated in the design of this new facility. This is an important gateway to Phoenixville and its downtown."

When asked about the current entrance to the property, which is located along Starr Street, a few feet shy of Bridge Street, Evans said that a new entrance would be made along Starr Street, but lined up with Church Street.

Following Evans' testimony, Hibbeln was asked about his familiarity with Phoenixville.

"I've done 20 previous sites like this before," Hibbeln said. "I've visited the current site more than a dozen times. I'm quite familiar with project here in Phoenixville. This senior citizen project is in the best interest of the community."

During cross-examination, Withers asked Evans did he seek consent of the St. Nicholas Brotherhood, or if he went elsewhere, to which Evans responded, "As newspaper headlines have said, will the real St. Nicholas Brotherhood please stand up?"

Following another Clemm objection, Withers asked Evans again, and Evans answered, "I did not."

Withers asked Evans, "Is St. Nicholas Brotherhood a party to the sublease? and Evans answered, "I sought legal counsel as to who I needed to seek, and they said I had to enter in with Holy Ghost."

When it was brought up that the sublease agreement between Holy Ghost Orthodox Church and St. Peter's Housing Development Corp. had Tuesday's date on it, Evans responded, "It has existed but was finalized today. The application was filed months ago.

"The agreement of sale gives us options until the end of 2010," he continued to Withers. "Your suit holds that up."

Clemm told council, "We didn't want to illuminate the ownership issue due to this being in court. We feel the sublease agreement would allow us to move forward with the application."

Council president Henry Wagner told Clemm, "I believe council want to make a decision tonight. We would be abdicating our responsibility without our involvement."

Clemm answered, "Do whatever you feel is best without dealing with the ownership issue."

Withers asked Clemm which document was the basis for the application, and Clemm said, "I stipulate it was the agreement of sale."

Withers questioned Evans on the HUD funding, and the Historical Study, to which Evans testified that HUD funding and involvement were not an issue as they are not involved.

Wagner called for a five minute recess, which was then followed by a 15 minute executive session so council could review the sublease agreement.

Upon returning from executive session, Rau read a statement authorized by council regarding the ownership issue, "In light of the active litigation concerning ownership and control of the property, any approval, if issue, shall be subject to presentation of a final unappealed order of a court of competent jurisdiction establishing the applicant or applicant's rights vis-a-vis the property owners. If the conditional use and/or subdivision land development is approved, this shall be pre-conditioned to plan filing and issuance of permits."

In reply to the statement, Clemm said, "I understand council's position. I don't think a court of common pleas will say what the standing is," and then showed council the agreement of sale, dated June 2008.

Wagner then criticized Clemm for the lack of exhibits given to council and poor preparation.

"There were not enough documents provided for council," he said. "You were not prepared and didn't give us no new plans. I don't feel right making a decision."

Evans said that 21 copies were prepared for council, and said he believes the problem relied with borough hall staff.

"The next time we appear before you, we will provide you with plenty of copies," Clemm said, to which Wagner answered, "Please do so before we criticize borough staff."

In closing, Evans told council, "For us, conditional use doesn't matter if we own or lease."

Withers closed by saying, "We want council to look to see the issue of the sublease in this conditional use."

Wagner then asked for public comment on the issue, and when no one offered to speak, a surprised Wagner asked council members for their response.

Richard Mark Kirkner (D-North) made a motion, which was seconded by Kendrick Buckwalter (R-West), to continue the hearing until Aug. 11, to allow council time to review the missing exhibits.

Jeff Senley (R-North) said that he had reservations about taking action on the issue.

"There are exhibits missing and we only have half a plan," Senley said. "The (Phoenixville) Hospital's helipad proposal was well planned and presented properly. I could easily follow the entire proposal. There is nothing like that tonight. If I had to vote tonight, I'd say no."

Following a 7 - 0 vote, Rau said that the hearing would continue on Aug. 11, and there will be no further public notice.

"This is your public notice," he said. "We won't go through additional commentary on this. Council will deliberate and then take action."



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