Monday, July 28, 2008

Age Qualified Controversies, Warning Mature Content Inside


Like too many lawyers and those calling for their demise, Court challenges, pro and con, concerning Age-Qualified Communities (AQC a/k/a AARC) abound. Yet, no fact pattern is unique.

Consider this recent challenge in Newtown, Bucks County. There, Hovnanian Pennsylvania Acquisitions, (Hovnanian) a namesake Armenian, (gasp) development-company (double gasp) sought approval for its "elderly housing project" as a conditional use.

The Board denied the request. The full Ordinance can be found here.

The Ordinance in question provided, in part, that "elderly housing . . . include a form of residential use that is designed and operated for mature adults. . ."

Use designed for Mature adults?

At issue, however, was not so much mature content, rather it was the special solicitor, an attorney hired by the Township to handle only the Age Qualified Controversy.

Hovnanian argued, "the appointment of a special solicitor to represent Township in the conditional use proceeding created a biased and prejudiced tribunal in violation of Hovnanian's due process rights." In other words, Hovanian argued the Board and its solicitor were predisposed.

Sound familiar?

Arguably (very) the converse of that could apply in Lynn Township, where certain Township officials met with the developer to consider outside counsel or in the case where outside Counsel advocated in favor of the proposal.

Does that make them predisposed? The Court said no, but that won't stop challengers.

The solution, some say, is to kill all lawyers. It's OK, I’ve got a backup career. (No, I'm not advocating murder.)

Recently, the proponents took a new direction. Rather than proffer any hardwired proposal, the BOS remanded the full issue to its Planning Commission, a board of appointed members, none initially appointed by Yours Truly. Now the PC can offer its fully unbridled comment.

And that’s good! That's Open Government

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