A Pennsylvania law intended to ensure affordable housing in the suburbs has ended up allowing developers to build what they want, where they want, with this result: A proliferation of upscale housing.
In doing so, the law has led to protracted legal battles that have cost towns and developers hundreds of thousands of dollars. It has driven up the cost of housing. And, in the words of a top Ridge administration official, it has "undermined" the ability of towns to plan.
What the law has not done is produced much affordable housing.
The law, known as the curative amendment, empowers developers to challenge - or "cure" - zoning ordinances that they say are unfair. The idea when the law was passed 28 years ago was to provide a legal mechanism to make sure that housing for everyone was built in the suburbs, where exclusionary zoning was common.
The irony is that the law has become the weapon that builders use to force upscale development into communities - housing they say is in great demand.
The power of the challenge is such that "the municipality loses control over its ability to plan for the orderly development of its community," said lawyer Stephen Harris of Warrington.
He should know. He used a curative challenge to force a rock quarry into Bucks County's Plumstead Township.
Luxury-home builder George Parry calls the curative amendment law "the big hammer" that developers turn to when municipalities oppose their plans.
But local officials say the law has led to nothing less than legalized extortion.
"It's pure assault . . . purely blackmail-oriented," said Damon Aherne, the chairman of the Tinicum Township Planning Commission in Bucks County.
The results have changed the face of communities around the region.
In Warwick Township, Bucks County, 403 houses, a 120-unit apartment complex, and a health club are being built on 115 acres that had been set aside largely for agriculture. In Schuylkill Township in Chester County, Toll Bros.' 219-home luxury development, Valley Forge Woods, sits on an area that the township had hoped to preserve as a rural residential tract. One township official now calls it "Valley Forge Used-to-Be Woods." And in Buckingham Township in Bucks County, a retirement community of 645 mobile homes now covers land the township wanted to keep in crops.
As lawmakers in Harrisburg are scheduled this week to consider proposals to protect towns from these challenges, at least a dozen curative battles are under way in the Philadelphia suburbs.
Plumstead Township alone has spent $500,000 in tax money to fight off developers. Wrightstown, Upper Makefield and Newtown Townships in Bucks are involved in battles that together have cost them more than $380,000. And in Bedminster Township in Bucks, local officials raised taxes two years ago to cover $170,000 in legal fees fighting off curative challenges. The township now spends more battling builders than it does on fire protection.
Builders and municipal officials both have legitimate gripes about the process. Suburban towns have a history of keeping out low-income people through zoning that makes building affordable housing impossible. But builders have been using the law to bully local officials into accepting housing that is far from affordable - and in places towns have not targeted for growth.
What has made the curative amendment law so powerful in the hands of developers?
Under the law, towns must provide an undefined "fair share" of affordable housing and all other types of development - an ambiguity that invites exploitation. In addition, Pennsylvania's courts have read the law to require that municipalities allow for every type of development. Finally, the courts have ruled that developers who win curative challenges can build what they want, where they want - no matter what the local land-use plan says.
Courts call this the "site-specific remedy."
It is that power that local officials have been lobbying for years to change. Now, Gov. Ridge is calling for revisions in the law, which his top land-use adviser, Kim Coon, says is compromising local zoning ordinances across the commonwealth.
"There are very good plans out there that are being undermined by the curative amendment process," Coon said.
Ridge's involvement follows a wide-ranging review of Pennsylvania's land-use laws that included 53 public forums across the state.
One key finding: "Probably no other issue generated more frustration . . . than the curative amendment. . . . Residents and township officials cited example after example of the . . . process used as a weapon to threaten small municipalities" into accepting developments.
Tomorrow, the House Local Government Committee is expected to vote on a proposal by Rep. David J. Steil, (R., Bucks) that would give some protection to municipalities that join with other towns to plan regionally. Builders say they will oppose any change that weakens their rights and stops development.
"To put in the hands of local government the ability to exclude people is a dangerous policy," Duane Searles, of the Home Builders Association of Bucks/Montgomery Counties, told a gathering of lawmakers last week in Bryn Mawr.
But critics say that allowing builders so much power is also perilous.
Developers in every state can challenge land-use restrictions. But only Pennsylvania allows victorious builders to call the shots on where to build, even if it means chaos to a town's vision of itself, according to Dan Mandelker, a land-use planning expert and professor at Washington University School of Law in St. Louis, Mo.
Builders use the law to force their plans through, even when the type of development they are proposing exists. Their argument: That type of development may exist, but it still does not meet the ill-defined "fair share" threshold for that community.
The process starts with a plan that the builder knows local officials will find objectionable, but which the courts are likely to allow. A frequent example is a mobile-home park in a town where there is none.
The builder then plays off the local anxiety and offers a compromise - a subdivision of luxury homes, for instance. Critics say that plan is what the builder really wanted all along. But it is also a plan the municipality might have blocked by arguing that it already had its "fair share" of that type of development.
To get around the "fair share" argument, some developers have gone so far as to file multiple challenges - each for a different type of development - on the same property.
The use of the law as a weapon is something the man who wrote it never expected. Jan Krasnowiecki, a former University of Pennsylvania law professor, said he envisioned an amicable process enabling developers to fix exclusionary zoning ordinances.
"I used to advise developers to try to present the best plan, not the worst plan to scare a local government," said Krasnowiecki, now a Center City lawyer. "They decided to go the other route."
Consider the mobile-home ruse.
A study by the Heritage Conservancy of Bucks County documented seven examples in the last 20 years of developers proposing mobile homes in communities where they were excluded - only to build expensive suburban homes instead.
"Developers are only using" mobile homes "as a smoke screen," said Allen Heist, the manager of West Vincent Township in Chester County. "Most municipalities don't want that stigma, that kind of low-income housing."
The apartment-building ruse is another example.
Consider what happened in Bucks County's Buckingham Township. In the 1970s, the township lost curative challenges that gave developers the right to build 5,500 apartments on 550 acres zoned for agriculture. The developers then turned around and used the prospect of that massive development in the then-rural community to win approval of 1,155 upscale homes.
Dan Hoffman, the policy director of the Pennsylvania Low-Income Housing Coalition, concludes that the law has fallen far short of its promise.
The are two reasons, he said. Builders have "waved the bloody flag of affordable housing" to scare municipalities into agreeing to more profitable projects. And municipalities have continued to use their zoning ordinances "as a tool of exclusion."
The curative law has "really sort of further helped to stratify and exclude people," said Joanne Denworth, president of 10,000 Friends of Pennsylvania, a coalition of conservationists, builders and business leaders working for smarter approaches to development.
For the last 20 years, the main battlegrounds for curative challenges have been in Bucks, Delaware and Montgomery Counties.
Those fights have made municipal officials in Chester County, the latest growth hot spot, more willing to accept developments they might otherwise have fought, said Heist, the West Vincent township manager.
Frustrations over the curative amendment process had local officials standing in line for hours at public hearings last summer to vent to Coon, the governor's point man on sprawl issues. Among them was Lower Gwynedd Supervisor Kate Harper, who told Coon how her township's efforts to plan its growth had been compromised by "repeated curative amendments that sap our energies, deplete our budget, and worst of all, threaten to upset all of our planning and zoning."
It was a tale told again and again.
What bothered local officials most was the law's "site-specific remedy" - which lets developers build what they want, where they want. The governor has proposed taking away that prerogative by giving municipalities and the courts the power to decide where curative-imposed development should go.
That idea has run head-on into opposition from the powerful Pennsylvania Builders Association. The group says a builder could end up fighting to build a development, only to have municipalities and the courts decide that it should be built on land the builder doesn't own. There would be no incentives to file challenges.
"We feel that site-specific remedy provides an opportunity for us to keep local government honest," said Searles, of the Home Builders Association of Bucks/Montgomery Counties.
Developer Ben Ciliberto agrees. His C&M Home Builders Inc. has filed nine challenges against two Bucks County towns in the last 11 years. Among his latest is a challenge to Bedminster's zoning ordinance to build 1,500 "townhouse condominiums." They would be located just down the street from 600 houses that C&M built in 1994 on 65 acres in neighboring Plumstead - a development Ciliberto forced into the community through a curative challenge.
Ciliberto contends that it is unreasonable for Bedminster, where more than 90 percent of the township is zoned for agriculture and open space, to suggest that the site he wants to develop should remain rural when new homes are a short distance away.
"Somebody has to fight these fights," Ciliberto said. "If they're allowed to zone 94 percent of the township agriculture and stop growth altogether, that goes to the heart of our livelihood."
Developers say they don't like doing business this way. They complain that it is a costly process, in legal fees and in development plans delayed, as hearings are held and appeals filed in court.
"The tactic the township takes now is to delay. They drag this out and hope that my life will change, my financial situation will change and we'll just give up the ghost," Ciliberto said.
But he said he was willing to spend as much as $1 million on lawyers to fight Bedminster for the right to build what he wants, where he wants.
Builder Parry calls the curative challenge "an ugly process" that leaves no one feeling like a winner in the end. Still, he wouldn't like to see the curative challenge option taken away.
"We like the fact the big hammer is there," Parry said.
© 2000 Philadelphia Newspapers Inc.