Kennett tried to bully Chandler Mill homeowners into negotiating by threatening to simply seize their land while citing dubious legal precedents.
The $7M 1.4 mile Chandler Mill project - the first section of a proposed 14 mile Kennett Greenway - recently collapsed. How did Kennett Township waste more than $600K in design fees and years of planning? One reason is that the Kennett Greenway team though it could just take the land needed for the Kennett Greenway regardless of the wishes of residents. Kennett employed various strategies to take land from homeowners on Chandler Mill Rd, including :
Asserting its right to seize land through eminent domain
“Bullying” homeowners into continued negotiations, and
Fabricating provisions allowing for an expansion of the Right-of-Way (ROW).
These conclusions are based on investigations involving extensive review of publicly-available documents, others obtained through Right-to-Know (RTK) requests, and multiple discussions with individual landowners or their representatives. These investigations also reveal that the Greenway team simply ignored years of warnings about the need for a route based largely on an already established Right of Way, and then sought to sell landowners on a design the team had already decided upon instead of first addressing their concerns. Had this strategy worked, it would have set the stage for the taking of land from dozens of homeowners across Kennett Township over the coming years.
Residents should be very concerned about the the pattern evident here. With each new section of the Greenway completed, homeowners would have been under increasing pressure to turn over the lands needed, as Kennett Township and its funders invested more time and money in this project. It would have worked smoothly, had multiple landowners not stood their ground and OpenKennett not shed light on the Township’s machinations. And as we outline below, Kennett might yet try to make it work.
Eminent domain
Eminent domain is the long-standing practice of seizing or “taking” land for “public good”. Given that “public good” and the right of government to take land has been broadly defined, it should be no surprise that the government almost always prevails in cases of Eminent Domain, and that the practice has been egregiously abused over the years to (among other things) target racial minorities. There are even cases where seizures result in substantial financial gain for private business owners.
Residents have reasons to fear a precedent set by Kennett Township to seize land for the Greenway. The procedure is relatively simple - Kennett need only petition the Orphan’s Court and notify a landowner. A decision can be rendered within 30 days, leaving landowners little time to mount a defense. In most cases, the landowner receives nominal compensation - if any - for their loss. An additional step is required for land protected by conservation easement (like most of the lands along Chandler Mill), but this does not prevent trees on land designated as environmentally important from being destroyed. The precedent for seizing private land for a shared use path in Chester County has already been set, in the case of the Paoli Pike Trail in East Goshen, a project managed by one of the firms (McMahon) on the Greenway team.
Beginning in 2021, the Kennett Township Board of Supervisors (BOS) and the Greenway team repeatedly ducked questions raised about eminent domain at meetings and through posts on OpenKennett. But by the summer and fall of 2022, landowners were reporting to us that Greenwuay team members were either clearly implying that the Greenway would be built regardless of the landowner’s objections, or stating outright that Kennett would simply seize the land it needed.
We recognized that the BOS might hesitate to take such a controversial stand in public, so at a meeting in January 2023, we called their bluff. The response was revealing… in an unusual move, Ratliff conferred separately with Supervisors Stevens and Gamble out-of-earshot before offering the following, carefully crafted response: “Supervisors want to be clear that they have never considered eminent domain to be an option”.
The deliberations surrounding Ratliff’s carefully crafted response and the actual facts suggest that supervisors decided to nod-and-wink at Ratliff’s use of eminent domain to “bully” landowners (see below). At least one landowner reported to us that, after the January 2023 meeting, Ratliff solemnly announced that supervisors would not move to seize the land through eminent domain. We therefore believe that Ratliff’s carefully crafted response at the January 2023 revealed that the BOS understood that Ratliff had threatened landowners with seizure, even if a majority of the current supervisors might never publicly support the practice. Once we had pressed supervisors to take a public stand on eminent domain, Ratliff could no longer use this threat to bully landowners. And without the pressure to remain at the bargaining table to stave off seizure, landowners no longer felt compelled to negotiate, and the plans for Chandler Mill quickly unraveled.
We would not be surprised if the BOS now felt under tremendous pressure from Ratliff and the Kennett Trails Alliance to reverse its position on the use of eminent domain. We pressed the BOS on this at the April and again at the May meetings, requesting that they move on from the proposed sidepath now that the position of landowners has become crystal clear, but the BOS has steadfastly refused to entertain any change in course. We would not be surprised if there are frantic efforts behind the scenes to spin the collapse of negotiations to deflect attention from the $617K wasted on design fees. Could the BOS reverse course and move to seize the lands needed for the Greenway, if only to avoid further embarrassment in the aftermath of $3.2M embezzlement by the former township manager and a $300K ethics investigation of its current manager? We suspect the the current BOS might not, but that a future BOS may change course.
And there are signs that Kennett remains open to plans that require the taking of land for shared use paths elsewhere. When the Kennett Connections project was presented in April to the BOS, we specifically raised concerns that a key component - a proposal for a path along Rt 82 - would likely require private land from 1 to 2 dozen homeowners. The BOS appeared to enthusiastically endorse the proposal despite our concerns.
“Bullying” by Township Officials or their designees
Kennett also “bullied” homeowners into negotiations. What do we mean? Consider these modifications (in italics) to the definition adopted by the National Center Against Bullying: “Bullying is an ongoing and deliberate misuse of power in relationships with private citizens through repeated verbal, physical and/or social behavior that intends to cause physical, social and/or psychological harm, including taking of land against the citizen’s wishes. It can involve an individual official, a public agency, or their designee misusing their power, or perceived power, over one or more persons who feel unable to stop it from happening.”
Implied or actual threats to seize lands constitute one clear form of intimidation: whether citing eminent domain or U-ROW (see below), such a threat is an abuse of public power over a resident. That Greenway team members should threaten seizure without a supervisor’s public support of the practice is especially cynical. At least one landowner referenced their reluctance to get into a legal fight with Kennett as a reason for giving in to Kennett’s demands, despite their own objections.
Kennett brazenly asserted its power and control over residents in other ways. For example, one landowner who provided the Greenway team with a letter detailing their objections to the plan was bluntly informed that their letter would make no difference to Kennett’s decisions. We believe that one purpose of the multiple meetings with Kennett's contracted designers and lawyers long after homeowners indicated their reluctance to sell was to pressure and intimidate homeowners - indeed, more than $90,000 was spent on such unplanned meetings in 2022 alone. In this context, it is notable that Kennett planned very few meetings with homeowners to confirm their support for the plan before the $600,000 contract for the “final design” was approved by the BOS in June 2021. Records obtained through RTK requests suggest that the frequency and size of meetings convened with landowners increased only AFTER landowners raised objections.
Finally, other decisions clearly conveyed a message to landowners that they were not equal partners in the negotiations. For example, the BOS signed a $617K contract for a final design without first obtaining clear written agreements from ANY of the landowners (in one case, without communicating at all with the landowner). Kennett also withheld important information from landowners. In response to a RTK request, Kennett turned over no documents indicating that it provided landowners with the most up-do-date plans. In at least one case, a landowner did not see plans updated in 2022 until an open house held for the public in October…. At which point the Greenway team made it clear that no changes would be considered.
This pattern of bullying noted here was not the only - or even the most egregious - example in Kennett. We will detail other instances of the abuse of public power in a separate post.
Ultimate Right-of-Way (U-ROW)
A lesser-known strategy for townships to take land is to assert an U-ROW. For example, municipalities can require property development plans to set aside an additional ROW for future public use. In Kennett, this might extend the existing 33’ ROW on many roads to 50’. This additional space was clearly required along almost the entire length of the plan proposed in May 2021 (in several places, the sidepath and area of disturbance extended even beyond the U-ROW).
Our understanding of the practice is that U-ROW provisions are inserted into land development plans. Some townships have taken the practice further by adopting specific ordinances that enshrine an U-ROW for all new streets going forward (like Upper Providence Township in Montgomery County).
While Kennett Township has not adopted a comparable ordinance, there is language referencing 50' ROW for new streets, and records confirming the inclusion of U-ROW in sub-development plans in Kennett Township as early as 2016. We can find no precedent for applying a U-ROW retroactively however, or to individual parcels that are not part of a land development plan. And we can find no such land development plans for the parcels in question on Chandler Mill Road.
Nonetheless, designers marked Existing U-ROW on two of the parcels, and Proposed U-ROW on the remaining parcels on the preliminary design for the Chandler Mill sidepath approved by Supervisors in June 2021. We reviewed the deeds for the former and found no reference to U-ROW either in the text or the drawing. It therefore appears that the design team simply penciled in U-ROWs where none existed, with no clear legal basis. Did supervisors solicit a written legal opinion on this matter? We doubt it, and officials refused to answer any of our inquiries.
The penciling in of a U-ROW where no such right has been legally established should concern every resident. It suggests that Kennett believes that it has the right to seize an additional 8 ½ feet beyond the existing ROW along each side of most roads, without any compensation whatsoever. We do not expect that Kennett would prevail in the courts, however, though this presumes that homeowners could afford the legal costs of mounting a fight. And it presumes that homeowners know to double-check drawings submitted by township contractors.
Based on conversations with landowners, we also know that township officials sought to assert a U-ROW for at least one other parcel. In the absence of a compelling legal opinion, we would consider this assertion of a U-ROW to be little more than a cynical ploy by the Greenway team to bully landowners. And the township’s bullying (see above) just might have worked, had some of the landowners in question lacked legal counsel.