Traditions to get independent decider
Broughal was supposed to decide that motion on March 1, when the hearing was scheduled to resume. But that never happened. Broughal told commissioners that his decision, whatever it is, would be the basis of an appeal. He also predicted that other disqualification motions would soon follow, aimed at others.
Retirement community developer Traditions of America (TOA) is seeking tentative plan approval for a 229-home development on lands owned by Green Pond Country Club. Previous attempts to develop that tract have failed, mostly because of stormwater and traffic issues. This is also a Audubon-designated Important Bird Area. This active senior community is proposed next to wetlands that serve as home to 182 different bird species.
Over 50 people were at the first public hearing on Feb. 22. But Commissioner Breslin was absent. He picked the wrong night to be away. Attorneys Charles and Thomas Elliott, representing an environmental group known as “Save Green Pond,” filed a motion seeking Breslin’s ouster as one of the deciders.
It’s based on statements Breslin made before tentative plan approval had even been recommended by the Planning Commission. He called the project a “done deal.” There was also evidence that he ridiculed bird enthusiasts who presented commissioners with water color drawings of each of the 182 bird species at Green Pond. Most damning of all was a brochure he was taking to local businesses, seeking advertising for a soon-to-b-published bi-weekly newspaper. A companion website includes a promotional picture of Green Pond Country Club and Banquet Facility.
Breslin has failed to respond to press inquiries about whether he solicited ads from Green Pond Country Club or TOA. He also said nothing during the March 1 hearing.
If commissioners accept Broughal’s recommendation and appoint an independent hearing officer, it will make no difference whether Breslin or anyone else is biased. But it raises another question. Isn’t this what commissioners are elected to do?
Former Commissioner Jerry Bachta called the idea an “abdication” in which the interests of 23,000 plus citizens are willingly handed over to a single person who has no vested interest in the community. “Why bother having an elected BOC at all, then?”he asks.
In addition to whatever commissioners decide March 6, TOA must also agree to allow the tentative plan approval to be decided by an outside hearing officer. Gregg Adelman, who was representing the developer in the second hearing and ready to proceed, was caught off guard. He was unprepared to say whether TOA is willing to abide by the ruling of an outside hearing officer.
If TOA refuses to be bound by a hearing officer, commissioners will have to decide the matter, and the bias claim against Breslin will have to be resolved. And then the can of worms opens up for three other commissioners who could also be charged with bias.
Mike Hudak has previously made statements that could be construed as supporting the project. Tom Nolan and Malissa Davis have made public statements that could be viewed as negative. Davis ran under the “Save Green Pond” banner.
No motion has been filed to recuse any of these commissioners. The law concerning bias requires that a recusal motion be filed promptly after discovery of the bias, which was done with respect to Breslin.
Though no name was mentioned, Broughal indicated he had someone in mind for the independent position. This person is thought to be Josele Cleary, a Lancaster-based attorney whose practice areas include municipal law and land use. She has been the editor of the Pennsylvania Bar Association Municipal Law Newsletter since 1990. She has also been a course planner, author and lecturer for the Municipal Law Colloquium of the Pennsylvania Bar Institute.