Monday, January 24, 2011

Litigation Agitation

If anyone has been following the less serious news lately one would have found and watched the video of the woman walking and texting and then falling into the mall fountain.  Anyone who has seen that video knows that the woman cannot be identified and one can also see that she was not seriously injured since she climbed back out of the fountain and went on her way with a look around like most of us have done when we have fallen on ice in the winter or tripped up stairs;we look around to make sure no one saw our klutziness.  Shortly after the video aired everyone found out who the woman was when she went public with the intent to litigate the whole issue.  Were the security guards who put the video on YouTube a bit callus, they might have been, but since the viewer could not see the woman's face, there really was no harm no foul.  It's a bit like the suit brought against McDonald's by the woman who got burnt by a cup of their coffee.  Thanks to her there are now warnings on all hot beverages stating that one must be careful as the contents are hot....well duh.  We have turned into a society of litigious people and it has gotten us things such as silly warnings on coffee cups all the way to serious things like losing government grants.

Just recently Downingtown was denied a grant to extend Struble Trail through Kardon Park.  No one knows exactly why it was denied, but there is plenty of speculation and I believe it has to do with the pending appeal of the Kardon Park development and the current litigation of the E. Caln property.  Why would the government want to give a grant for something that could very possibly wind up in court....I know I would be trepidatious in giving money for something that may never come to fruition.  So here we are looking to revitalize our town even in a small way and we can't because a few people have an issue with progress and have the borough tied up in court.  Now before you try and rake me over the coals I know that Ms. Feldman voted for it and I am thankful that Mayor Maxwell was able to help her to see that it would be a good thing.

It's a shame that a few misguided people can cost others so much.  Lawsuits for malpractice that pay the plaintiff millions of dollars which won't bring people back, people suing McDonald's because they bought a cup of coffee, put it between their legs and then had to hit their brakes hard enough to make the coffee spill in their lap, people texting while walking and not looking where they are going, falling into fountains and then hire a lawyer because they were humiliated, people tying up a borough in court over something that could have been hashed out long before there was a desperation that a park would be lost.  No one wants to take personal responsibility anymore and no one wants to discuss change with those proposing it because, I guess, that would be too easy AND too hard and God forbid anyone make an effort anymore.


  1. There already is an extension of the Struble Trail through Kardon Park. It is called the Lions Trail. It was only the plan to displace the trail during the proposed development of the park (which cannot happen unless the Orphans Court decision is overturned)that led to the current grant application to extend the Struble Trail on the rail bed. Since trail users already have a better trail through a park, not at the rear of commercial properties, it would have been innappropriate in the current economic climate to spend taxpayer dollars to build a second trail only to facilitate a builders unlawful plans to develop a public park.

    Litigation or not, this was hardly an appropriate use of taxpayer dollars at this time.

    The decision to lease the rail bed insures that Mayor Maxwell's idea of a loop trail in the future at Kardon Park could be realized if and when the economic climate improves.

    There is also nothing wrong with a second trail extension, but with a tight county budget, it is obviously not a priority now. Nor is there any pressing need for a loop trail. The real reason for the grant application was to use public funds to facilitate private development of a public park, which again, is illegal.


  2. Oh for goodness sakes even your hero Ann voted for it. It's not illegal it is tied up in the courts! Kim Manufacturing also has a hand in this whole issue and it's makes people begin to wonder what they are hiding that they are so against development and a flippin trail. It's not noise and you cannot convince any level headed person that that is the sole purpose for them walking hand in hand with FOKP. The Lion's Head Trail does not loop as conveniently as the new proposed trail would. The money would come from a grant not from the budget and it would benefit the businesses in the borough, but it's people like you, Chris, who want to keep us in the 19th century not moving forward and dying a slow death. Get off the stupid train and join he rest of us level headed people who actually want to see the growth that is within reach if we just grab it.

  3. Wrong yet again, Elaine. Selling public parkland for private development has been illegal in Pennsylvania for a long time. This was confirmed by recent legal cases. (Erie Golf Course, Burholme Park, Kardon Park).

    Your opinion notwithstanding, those are facts, easily verifyable by anyone who knows how to use Google.

    The grant to extend the trail was concurrent with the proposal to develop the park. Without a development displacing the trail for an undetermined time, Struble users will continue to use the Lions trail. You will note that I said there is nothing wrong with a loop trail, or a second trail, but with budgetary constraints, it is hardly a high priority if a better trail already exists. Clearly from these comments, I am not opposed to the trail proposal.

    In the future this second trail extension/loop trail may well be built, since the Borough has acquired the easement rights, with Ann Feldman agreeing as you point out.

    The county obviously looked at priorities, and determined that it was not an immediate concern.


  4. You are incorrect those cases were seen to be against the Public Trust Doctrine which was orginally to keep waterways out of danger of daming. Along with the protection of natural resources from the land. However, it has now been skewed by those who feel that parkland that could be sold off for profitable development and revitalization which are not being used as a viable park should be included in the PTD. As of right now we have enough liberal judges who are ruling that it does fall within the purvey of the doctrine, BUT it does not make it illegal per say. Illegality would have severe consequences if the land were developed anyway and as of right now there are none of those provisions in place.

    One thing that is curious is that you did not even mention my thoughts that Kim Manufactoring has something to hide and that is why it is a litigant in the Kardon Park suit and is so against the recently shot down trail.

    The really sad part about your posts Chris is that you say the same thing over and over again hoping to get different results.....hmmm isn't that the definition of insanity?

  5. I suggest you read the Supreme Court review of the Erie Case, which redefines the role of the DDPA in relation to the PTD. It can be found online. As you are probably aware, the Commonwealth Court ruled the Golf course could be sold, overturning the Orphan Court ruling based on the PTD, and the Supreme Court remanded that decision, because of the question of whether the DDPA could apply to lands acquired through purchase or condemnation, yet dedicated to public use. That case clarified the case law, and was cited in the decision by Judge Platt. Ultimately it was the DDPA that controlled, not the PTD in all three cases. As the Supreme Court stated, statutory law would trump common law (the PTD).

    The Burholme case was decided on the PTD in Orphans Court, but the Commonwealth Court weighed in on the applicability of the DDPA and the inapplicability of the Inalienable Property Act. (as did Judge Platt).

    Kim Mfg.'s position is well established. As far as the development is concerned, they felt (1)It was unlawful under the PTD and DDPA (see their pleadings in court), (2)that a residential development immediately next door to their long standing facility would create complaints against them for noise, etc., and as for the trail, (3)they question the definitions of the easetment itself, and whether they may actually have claim to use of the land since the easement crosses their property, and has not been used for years.

    If it seems I am repeating myself, it is because the facts of the matter have not changed, no matter how you try to misrepresent them.


  6. You still make my point with the liberal judges ruling in favor of outdated laws and doctrines that no longer work with progress nor revitalization.

    Yeah I believe that Kim Manufactoring is so worried about any laws or doctrines over the land...uh huh I was born at night, but not last night. That and the laughable representation that they are concerned with land that has not been in the forefront of their minds nor operations for years. That's a load of bunk. As for the noise there has been and will always be noise when near any type of plant that manufactures ANYTHING, so residents would understand the risks beforehand. It's like moving into a college town and then complaining that there are too many college will fall on deaf ears.

    Now go away I have things to do tonight.

  7. But Elaine, people DO move into college towns, and then complain about the kids. Or they move next to a small airport, and complain about planes flying near their house. These things are not uncommon. Obviously in the case of Kim Mfg. the complaints about noise preceded anybody even moving in there. They were made by the developer herself, who did not even have a valid equitable interest in the land, and is not a Borough resident. And the Borough took the side of the developer because they were in bed with her, and used the instruments of government power to harass the long-standing property owner (and employer). Search the DLN for KIM Mfg. articles.

    And you wonder why people are upset with the Borough and developer????

    And just why is it that when a judge rules in a matter that some people don't agree with, but is in keeping with the law, those people immediately slap labels like "liberal" or "right wing" judges on them?

    Surely you are not suggesting that Judge Platt should have just ignored case law?


  8. First of all Chris, judges interpret the law. I am sure that if you did not like what Judge Platt had ruled she would have gotten some title or another so don't act like you are so lily white. Liberal in many instances can also mean playing fast and lose with their interpretations.....and when I "label" a judge that, that is *my interpretation.

    I am so flippin tired of hearing how the evil Borough Council harrassed, pushed shoved and all together now "illegally sold" the land. God forbid anyone should want to do anything to bring in revenue, revitalize the downtown area and help pay down some of the debt load by selling a piece of land that is not used. And don't start lying and say that it is used because we both know that it isn't. But if you want to present that thought I expect to see you and all of FOKP having a picnic there once the snow is gone....oh wait how about a snowball fight now, I mean after all it is a park.

  9. *Since you have not fished my last post from the spam filter, I will attempt to repost.

    Yes, judges apply and to some extent interpret the law. That is their job after all, to interpret the statutes and determine how they apply to particular cases. If they get it wrong, the decision can be oveturned on appeal, but only if they got it wrong. In the Kardon Park matter, Judge Platt spent a year deliberating the complexities of the law, and found that all case law supported the position of Friends and Kim Mfg.. She had no choice but to rule as she did, unless she accepted the misrepresentations of the borough that the land was not acquired for and dedicated as public parkland.

    Since it was acquired and dedicated and historically used as such, it is in fact unlawful (illegal if you prefer) to sell it for private development as case law clearly indicates.

    It will be interesting to see how the appeal proceeds, since clearly the only way around Judge Platts decision would be through some sort of loophole in the law, that has not come to light as yet.

    It is a matter of public record that the borough cited Kim Mfg. for noise, and claimed they did not know who actually filed the complaint when only the developer had tested the noise levels. This cost Kim Mfg. a lot of money in legal fees, which they likely can never recover. Moreover, the developer had no legal standing to make the complaint in the first place since she was not a neighboring property owner, had no legal equitable interest, nor was a resident of the Borough.

    I call that official harassment. You can call it whatever you like.


  10. However the fact still remians that she based her decision on anecdotal evidence and misrepresentation of what part of the land was actually park and which was not. It is a possibility that her decision will be overturned.

    Wow talk about making assumptions that the developer was the one who called to complain about the noise of Kim Mfg. In fact that take a brass set to say something like that when you have no evidence that it was them. So let me see here.....Judge Platt was right on the money when she ruled as she did and the system worked then, but when Kim Mfg was cited the system failed? Can't have it both ways Chris...either it works or it doesn't. Honestly I would link the developer here so that they could see your acusations, but the fact is I seriously doubt they have time to spend on you.

    Persoanlly I call your remarks call it whatever you want.

  11. It is a matter of record that the developer hired noise consultants to present their case to the Borough. Kim then was forced to hire their own noise consultant to refute the claim. Check the newspaper articles before you comment. The zoning hearing board ruled in favor of Kim Mfg. It is also a matter of record that the Borough management 'claimed' they did not know who filed the complaint. But it is a matter of record that they based their case on the developers' noise studies. Otherwise there was nothing to go on. Now, if a Borough resident filed a complaint, that should be documented, and followed up on, since they would have legal standing to do so. But somebody at Borough would have to know who made the call or wrote the complaint. And the Borough would have to hire a noise consultant to determine if the complaint was valid.

    The developers had no legal standing to make a complaint without a legally valid equitable interest on the 40.5 acres, which they have yet to demonstrate. Also, they would have no basis to complain the noise was disturbing them even IF they had a legal agreement, because the land was still being used as public parkland.

    So one wonders why they were out there doing noise studies in the first place. And one certainly wonders how a complaint could result in a citation when there is no record of the complaint.

    It's a mystery, to be sure.

    You will note that I did not state the developer made the complaint. There just seems to be precious little evidence that anybody else was complaining.


  12. Not exactly litigation, but certainly agitation. Uncalled for agitation.


  13. As a side note, one wonders if the development and construction of 350 residential units in the park might actually generate more noise than the muffled sounds of stamping machines inside of Kim Mfg.

    BTW, Thanks for pulling my posts from the filter.


  14. You still did not make your point that the developer was the one who made the complaint. You can't prove it an all you have stated is supposition. So what if the construction makes noise for a short time, it's not like Kim Mfg is going to be bothered by it now are they?

  15. The Borough has a responsibility to maintain records about who makes complaints. And Kim Mfg. had every legal right to know who filed the complaint. But the Borough claims they don't know. But they issued a citation nonetheless. But they did seem to know the developer hired noise consultants, and those studies were presented at the hearings.

    If the developer had no concerns about noise, why were they out there doing noise studies? And why were they submitting them to the Borough?

    It would of course be a violation of Kim's rights to file a citation without a corresponding complaint, and the only party documenting noise levels slightly above the legal limit (on their test) was the developer(s). Without a formal complaint from someone, only the Borough itself could cite the company. And the formal complaint should be documented. If it originated within Borough, clearly they would know it.

    Obviously if the complaint had come from neighbors or people across the park at Lake/Sunset, they would have a vested interest in seeing the park remain, since (1) the wooded areas act as natural noise buffers, and (2) the sound of bulldozers, backhoes, dumptrucks, and general construction and post-construction development noise would far exceed the noise documented to be emanating from Kim Mfg.(which was detemined to be within the legal limit anyway), or a passive park.

    What is troubling here is the Borough making claims that documentation does not exist, and therefore they have no responsibility to provide it under the 'right to know law'. The same thing happened with the settlement agreement on the Kardon lawsuits. The Borough spent four years locked in a legal battle to acquire the park, signed a settlement agreement specifying the park would be established on the land, named after Morris Kardon, etc., according to court documents, but when asked to provide that document under a RTK request, it was mysteriously missing.


  16. Ok so Kim Mfg entered into this quagmire and one of the concerns they cited was noise from their plant bothering residents. Would it not stand to reason that the developer conduct a noise study? Then if the noise study showed that the nopise from the plant was withing normal range or acceptable would it then again stand to reason that the developer would WANT that presented and not file a complaint against Kim for noise levels? All you are throwing is sour grapes at the developer because Kim Mfg had to spend money for a court costs....oh darn. Maybe they could save some money if they backed out of the ridiculous litigation over Kardon Park.....hmmmm?

    As for the documentation being lost or the Borough trying to sandbag anyone. It is very possible that it does nto exist or that it is missing. I have NEVER claimed that the Borough, their managers, nor the council were angels and as far as keeping up to date with documentation it is lacking. For instance posting of council meeting about being far behind.

    Also when was the "legal battle" that included that the "park" be named after Morris Kardon? If I remember correctly the newspaper picture that FOKP is purporting to be proof that it was dedicated is from around 1978. I do not know how long documentation is kept on hand for D'town specifically before being moved to storage. Also many documents for many municipalities have not made it to the computer age.

    Stop thinking that there are conspiracies abounding. And you really need to stop pointing fingers without proof or you could be sued for slander when you present your opion as more than just opinion.

  17. (2nd attempt)

    Well, rather than assuming I have no idea what I am talking about, you could simply go to the prothonotary's office at county and request the files on the legal matters that led to the acquisition of the park. The legal fight started in 1974 and ended in 1978. Look under "Windsor Crossing and ATE-KAYS" and Borough of Downingtown and those entities (Kardon corporate interests). Since I have seen the actual court file documents, I will stand by my assertions. It seems the county did not lose the files, which include a letter stating a settlement agreement was reached between the litigants, ending the litigation.

    One would think this would be a significant enough event to justify the Borough not losing the document. The delay in the minutes is not uncommon in local municipalities, although there is no reason they could not be posted within a month, once approved, on the municipal website. The documents were requested, under a RTK request and the official response was they are not in the Borough files. (But the conclusion is noted in the minutes).

    Since the hearing over the noise issue occurred only months after the complaint was supposedly received, it is not credible that the Borough would have lost documentation or any memory of who lodged a complaint in such a short time period. One must also remember that the Borough is a partner in the development, and would receive a percentage of each housing unit, so could not be an objective arbiter of noise complaints if filed by the developer against a resident business, so should not have relied on studies paid for by the developer. It also makes no sense that someone made a complaint, and the only party that actually attempted to verify the noise levels was a non-resident developer with no equitable interest, and the Borough relied on those studies, unless it was the developer who raised the issue. Who/where is the other complainant? You can also verify that it was the developers consultant that stated the noise exceeded the legal limits, but Kim's consultant refuted it. The Borough did not fund an independent study.

    Further, you could request transcripts of the hearings re: the noise complaints, and determine if anyone other than the developer(s) conducted noise studies (including the Borough which should have relied on objective studies), offered evidence or spoke to the noise issue at the hearings. Nothing in the articles indicates any input other than by the developer's consultant.

    As we know, the zoning hearing board ruled in favor of Kim Mfg.

    Anyone could file a noise complaint against anybody at any time, and it is the Borough's responsibility to determine if the complaint has merit, not a developer trying to illegally purchase the land.

    It is certainly not slanderous to say the Borough relied on the developers' studies to pursue and prosecute a noise citation against Kim Mfg. since it is a matter of public record, and it was the only evidence presented at the hearing.


  18. One must also remember that the noise ordinance specifies that excess noise is to be measured at the property line of the cited property owner.

    We know that the developers' consultant claimed the noise slightly exceeded allowable levels at the property line with the park but that Kim Mfg's. consultant measured the levels at the site of the proposed townhouses, a few yards into the park, and found no violation.

    Now this is critical. There are no immediate neighbors to the east to complain, since there is a woodland immediately to the east, then the lawn/trail area, then another woodland, then eventually, several hundred yards away, the Sunset/Lake Drive community. Clearly there would be no excess levels heard there.

    To the north of Kim Mfg. is the church, which has not indicated that anyone there complained, and is immediately next to two roadways, which would likely generate more noise than Kim Mfg. Further, that building is routinely unoccupied.

    To the west is woodland and fields, and to the south, other industrial and commercial uses, which generate noise themselves, such as dumping and loading of trucks, etc. If they were to complain, Kim could easily argue they make as much or more noise, and should be cited as well.

    So it seems exceedingly unlikely that the immediate neighbors to the north or south, who were the only parties with a legitimate claim would have complained, and if they had, the Borough should have been easily able to identify them.

    So the noise was measured in the woods of the park, and that is the only information used to pursue the citation. The noise was said (in the articles and hearings) to be emanating from a large overhead door on the east side of the plant, facing the woods.

    This raises the age old question...if there is noise in the woods, and nobody is there to hear it, does it really make a sound?

    It also raises the pertinent question: If, as the borough and the developer, and the supporters of the developer have claimed all along, that nobody should be in those areas in the first place, why was a noise consultant out there exposing himself...let me re-word that...allowing himself to be exposed to the toxic waste that is so threatening to all of us? Why would anyone in their right mind take such a profound risk to support somebody else's noise complaint?

    Should the noise consultant himself not be cited for wandering into areas that are off limits to, and never used by, the public? Was he decontaminated after leaving the area? Has he suffered any profound ill effects?

    And if as supporters of the development have claimed repeatedly, no one ever goes there, what is the difference if the sound slightly exceed the levels precisely at the property line. The only party there is Kim Mfg. itself, who most assuredly did not file a complaint against itself.

    But of course there is no reason to believe the developer had anything to do with the noise complaint.


  19. Happy Groundhog Day.

    I predict at least six more weeks of Elaine bashing Ann Feldman and FOKP on this blog.


  20. And I predict at least six more weeks of Chris' ramblings and long winded circular posts along with agida inducing rhetoric.

    BTW Chris you might want to tell your cronies not to bother me at the council meeting tonight as we have an serious issue to bring up and I don't have time for them.

    Hey if Ann doesn't make another faux pas who knows she might just be left alone. What you don't get Chris is she is fair game being on council, just as Chip, Bob, Jamie, Brenda and Mark are....oh well let's see how long it takes for Chris to come up with some long winded post that no one really cares about.