The company aiming to redevelop an ailing Chester County mall with 700-plus residences and 280K SF of retail is suing the officials who rejected the plan.
An affiliate of Abrams Realty & Development filed a complaint against the West Whiteland Board of Supervisors on Wednesday after the body last month rejected its master plan application for the Exton Square Mall. It seeks to overturn the board’s decision and alleges that township officials aren't following the municipal code.
The developer is also pursuing a municipal-level challenge with the town’s independent zoning board that could allow the project to advance if the legal action fails.
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The lawsuit, filed in the Court of Common Pleas of Chester County, says the project application satisfied the requirements of the code and that the developer is “suffering damages as a result of the defendants’ wrongful refusal.”
“As each day passes and the Board refuses to issue a resolution approving the Application, ARD Exton accumulates significant carrying costs and other expenses related to the Property,” the lawsuit says.
It is a complaint in mandamus, which means ARD is alleging that board of supervisors Chair Rajesh Kumbhardare and Vice Chair Brian Dunn have failed to carry out their legal duties. They were both named as defendants.
The lawsuit says there is “no legally valid basis” for the board of supervisors’ rejection.
ARD wants the court to compel the board to advance the project. Kumbhardare, who won another six-year term Tuesday, said he doesn’t think that will happen.
“We always knew they were going to go the lawsuit route,” he told Bisnow. “That doesn’t scare us. It’s just going to waste more of their time and money.”
Prior to the Oct. 22 rejection, ARD’s master plan got the green light in August from the West Whiteland Planning Commission.
It was submitted shortly before the municipality amended its code to prevent the level of residential density ARD proposed for the site.
Many Planning Commission members had deep reservations about the project, but the body ultimately voted unanimously to approve it on the grounds that it was grandfathered in under the previous code.
That shift in the code is the subject of a challenge of validity ARD filed with the West Whiteland Zoning Hearing Board on Thursday afternoon.
The document accuses township officials of creating “invalid special legislation” aimed specifically at dictating how the Exton Square site is used. It says the effort is “irrational, discriminatory and constitutes an arbitrary and unreasonable intermeddling with the private ownership of property.”
The filing also targets an element of the township code that prevents master plans from being changed for five years after they are approved. ARD claims this isn't a right municipalities have under Pennsylvania law.
“If by some crazy possibility we were not successful [in the lawsuit] and we were rejected, then the new ordinance would apply,” ARD's attorney, Marc Kaplin, told Bisnow, explaining the reason for filing the challenge of validity.
He added that the five-year moratorium on changes to the master plan could prevent ARD from securing a tenant that needs a different type of space that is otherwise compliant with the zoning code governing the Exton Square site.
The matter will be discussed at an upcoming hearing, although a date hadn't been identified as of Friday, according to West Whiteland Director of Planning and Zoning John Weller.
Kumbhardare declined Bisnow’s request for comment about the validity challenge. Dunn and township solicitor Alex Baumler didn't respond to requests for comment about the challenge and the lawsuit.
