January 24–31, 2002

news

Development Hell

Northeast residents face legal action for opposing construction on potential park land.

by Daniel Brook

The best defense: High-profile attorney Robert Sugerman took the case to defend free speech, not to make big bucks. photo: Michael T. Regan

Hell hath no fury like a developer scorned. Residents and environmentalists in Rhawnhurst, in the Northeast, have long opposed plans to turn an 11-acre plot of undisturbed nature into a housing development. Now, however, they’re being threatened with a $3.8 million lawsuit.

The developer, Bethany Building Inc., claims that the opposition of the Dungan Civic Association and two local environmentalists, husband and wife Albert Chernoff and Wendy Troester, has cost it millions in lost profits. The neighbors assert that they were just exercising their rights to free speech and association.

For three years, Chernoff and Troester have been campaigning to get the vacant land behind their house incorporated into the Philadelphia park system. The 11-acre plot, which is owned by the wealthy Waddington family, abuts Pennypack Park in Northeast Philadelphia. In the summer of 2000, the two environmentalists succeeded in getting the land evaluated by the Fairmount Park Commission. According to Mark Focht of the park system, after conducting an internal study, the Commission decided to acquire the land with grant money from the William Penn Foundation.

"It’s a very good piece of property from an environmental perspective," Focht explains. "It has forests, wetlands and meadows."

But the sale never went through because Bethany Building successfully sued the Waddingtons, claiming they had development rights over the land. (Bethany has already built homes along Algon Avenue, the only road bordering the land, but cannot develop further without city permission to build new roads.) The Waddingtons unsuccessfully argued that Bethany’s rights had expired.

After the court setback, Chernoff, Troester and the civic association went to their local politicians for support. Numerous pols up to and including Congressman Bob Borski wrote pro-preservation letters. City Councilman Brian O’Neill reiterated his anti-development position and his intention not to introduce the necessary City Council legislation to authorize building new streets on the land.

"You’re not entitled to streets," says O’Neill.

In general, O’Neill says he leaves it up to local residents to decide what they want and do not want in their own backyards. "To disagree with the people in the neighborhood on an issue like this, I would have to believe they were so unfounded in their opposition. This doesn’t come close to it. I believe they’re exercising excellent judgment."

O’Neill can’t say the same of the developer. The councilman calls the lawsuit "just incomprehensible to me."

According to the most recent letter Chernoff and Troester have received from the developer’s lawyer, Brian Cleere, Bethany intends to sue not only the husband-and-wife activist team, but every member of the Dungan Civic Association.

Bethany Building’s executives and Cleere refused to comment on the case.

Chernoff isn’t happy about the suit, but he doesn’t have much to lose. "I’m lucky if I have $200 at the end of the day," he says. But lack of funds has not kept the couple from retaining some high-profile representation. Robert Sugerman, the lawyer best known for representing the Barnes Foundation and its controversial former director in several headline-making suits, has taken the case.

"He gave us a reduced rate," says Chernoff.

"A major part of my practice is representing citizens in their concerns about government," says Sugerman, explaining why he took the case. "Courts have made it crystal clear that it’s inappropriate to sue citizens for exercising their First Amendment privilege to speak to their public officials and attempt to persuade public officials to take action."

The attorney dismisses the lawsuit as "pure scare tactics." Sugerman has handled more than a dozen similar cases and says, "They always lose. These developers always lose."

O’Neill echoes these sentiments, saying, "I will never encourage anything but opposition to a lawsuit I think is frivolous and clearly meant to intimidate a group of volunteers who give of their time because they really care about the neighborhood."