Neighbors near the planned development at the former Magarity Ford dealership site on Germantown Avenue are planning a legal challenge to new city ordinances allowing the project.
Talks are continuing between Bowman Properties Inc., which plans a $30 million, three-part residential and commercial complex at 8200 Germantown Ave., and a group of residents living near the site on a final community benefit agreement meant to bring the two sides to a compromise on issues such as building height and site density.
In the meantime, an attorney representing 13 named plaintiffs, all from West Southampton Avenue, filed a legal action Jan. 26 in the city Court of Common Pleas challenging the constitutionality of two ordinances that changed city zoning law to allow mixed-use building on the property.
The lawyer, Daniel McElhatton, said the challenge wouldn’t be placed on the court calendar until Bowman files for zoning permits to begin work. But it effectively puts the developer on notice that the neighbors could be willing to go to court to stop the project.
“So the challenge is there, whether it should go forward to a full hearing depends on whether [Bowman] goes to pull permits,” McElhatton said.
Matthew N. McClure, the project attorney, had little comment on the legal maneuver.
“When it’s the appropriate time, we’ll respond to the appropriate judicial and procedural bodies,” he said.
It’s unclear what effect the commencement of a court case could have on an as-yet-unfinished community benefit agreement between the developer and neighbors. At community meetings and before Council, McClure often cited the developer’s guarantee of a signed, legal agreement as proof of the good faith in which both Bowman and neighbors were operating.
The two new ordinances are part of a package of bills sponsored by former City Councilwoman Donna Reed Miller, which changed the zoning designation for the two parcels and altered a zoning overlay to allow mixed-use building along Chestnut Hill’s protected Germantown Avenue commercial strip.
In Council testimony and in previous interviews, McElhatton maintained that the ordinances constitute a textbook case of “spot zoning” — that is, changing zoning law to suit a particular project or developer.
“These ordinances provide a benefit to one entity – Bowman Properties – at the expense of my clients, who are adjacent and neighboring property owners. The ordinances permit uses specifically prohibited in the community, without Zoning Board approval, and do so without a clearly defined public benefit,” McElhatton told the city Planning Commission late last year, before it approved the plan and sent it to Council.
McElhatton’s clients include lead plaintiffs William Coleman and Terry Halbert, who collected hundreds of signatures against the project, and Leroy Foulkrod, who served as a neighbor representative to a sub-committee of the Chestnut Hill Community Association — which approved the project in December by a 6-2 margin.
Bowman’s project brings a five-story mixed-use building along Germantown Avenue at Hartwell Lane, with retail space at street level and terraced condo units above. Also called for on the site is a 20,000 square-foot The Fresh Market grocery store, along with an 85-space parking lot. To the rear, facing Shawnee Street, would be a row of eight townhouses.
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