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Township Supervisors rule out using Eminent Domain to take land needed for Greenway

Updated: Feb 20, 2023

The Greenway team can no longer bully landowners who stand their ground

For more than a year, the statements and positions taken by Kennett Township officials led many to believe that Kennett would ultimately resort to seizing the land from reluctant landowners that Kennett needs to complete the proposed $7M 1.4 mile sidepath along Chandler Mill Road. As the pressure increased over the past several months to demonstrate progress, so did the rhetoric. So at the February 1st meeting of the Kennett Township Board of Supervisors (KT-BoS), we posed the question directly to supervisors: “Are you willing to rule out the use of Eminent Domain to seize private land for the Chandler Mill sidepath?”. To our surprise, Supervisors flatly denied that they would move to seize the land in this way, or indeed that they had ever considered doing so. Why does this appear to be a reversal and what does it mean?

First, some background. Eminent Domain is a long-standing legal doctrine that allows governments to seize (or “take”) the land for a “public good”. These powers are broad, as is the definition of “public good”, which has included razing “blighted” neighborhoods for housing developments. While Pennsylvania enacted legislation to add protections to conservation easements, these are relatively minimal: municipalities seeking to seize protected lands must first appear in Orphan’s Court, where the landowner's only hope is to convince the judge that the municipality had not considered “reasonable alternatives” before moving to sieze their land.

The first hint that the KT-BoS and the Greenway team (Township Manager Eden Ratliff, Kennett Trails Alliance Director Christina Norland, and the current design team including McMahon, Meliora, and Unknown Studio under the direction of Biohabitats) might believe that they could just “take” the land needed was found in small print in the preliminary designs submitted in March 2021. Next to the line indicating the legal Right of Way (RoW) marked on the engineering drawing was another line marking an “Ultimate Right of Way” (U-RoW). It turns out that the U-RoW is an obscure provision in Township ordinances included in the design of newer subdivisions that allows Kennett to take back control about 9’ beyond the existing legal RoW for future road improvements as needed.

It was clear in this design (ultimately adopted in June 2021) that every foot of the proposed sidepath required land in the U-RoW. Our review, subsequently confirmed by lawyers for the landowners, confirmed that the U-RoW could not be retroactively applied (it is unclear whether the KT-BoS ever sought a formal legal opinion). Nonetheless, the KT-BoS approved the “final design” in June 2021, with no assurance that they could ever acquire the additional RoW needed either through legal means or following discussions with the landowners concerned. We suspect that the KT-BoS was responding in part to pressure from the Greenway team, who claimed that construction must begin in 2022 to avoid losing grant funding. This later proved to be false.

The Greenway team continued to deflect and deny concerns when we raised concerns again in February 2022 about progress towards acquisition of the RoW. At that point, Ratliff refused to respond, claiming they could not discuss ongoing negotiations. Next, the Greenway team falsely claimed in an April 2022 private update to the KT-BoS (obtained through a Right to Know request) that “40% of the Right of Way coordination had been completed”. We then questioned the KT-BoS directly at a September 2022 public meeting about their willingness to resort to Eminent Domain given the impasse with landowners. They refused to answer.

The latest episode started when, in response to concerns about progress, Ratliff continued to imply in public meetings that there were no barriers to completing the Chandler Mill sidepath as described. Ratliff repeated his claims even after we noted that only 25% of the RoW needed had been secured in the two years since the need was identified (see picture to the right). When we challenged him directly, his response in a letter to the KT-BoS, and the Environmental Advisory Council and the Trails and Sidewalks Committee, made it clear that Kennett intended to somehow inevitably prevail (emphasis ours): “The Board has accepted the final engineering of the Kennett Greenway on Chandler Mill Road and is moving forward with implementation of the project with that design. Permits have been submitted to the Commonwealth and we are diligently working with landowners to implement the project. I accept that you, and perhaps some others, may disagree with this decision by the Board but nevertheless, execution is underway.”

Ratliff's confidence suggested only one solution to the impasse: Kennett was prepared to seize the land needed through Eminent Domain. But when we confronted the KT-BoS about this possibility at the public meeting held on February 7th, they flatly denied that they would consider moving to seize property, or indeed had never considered doing so. This was a surprise to us, given the circumstances outlined above.

Our conversations with landowners suggested that some were also surprised. Landowners had concluded that seizure was an option following meetings during which the Greenway team clearly communicated Kennett’s resolve to ultimately prevail. We believe that landowners who objected to the proposed sidepath were willing to allow negotiations to move forward to avoid having their land summarily seized. It is easy to understand how a landowner might ultimately swallow their opposition to the project and agree to sell the land, given the choice between receiving nominal compensation versus racking up legal bills in court proceedings that offered little chance of success. We also believe that the Greenway team used the implied threat of seizure to keep landowners at the table, hoping that they could ultimately bully landowners into handing their property over to Kennett.

The refusal of the KT-BoS to consider seizing the land needed may well doom the Chandler Mill sidepath as proposed by the Greenway team. Our discussions with the remaining landowners suggest that they are standing their ground despite Kennett’s pressure to sell. We believe that pressure to deliver on the $800,000 spent in final design and permitting fees has led the Greenway team to mislead the public, the landowners in question, and the KT-BoS about the prospect for the successful completion of the project, hoping that something might eventually change. That is now much less likely to happen, because the Greenway team can no longer bully landowners with the threat of Eminent Domain.

In the meantime, we have offered an alternative design to the KT-BoS that could save 400 trees and up to $5M, a relatively simple design involving traffic calming measures and other adjustments to the roadway. In fact, we just need 12 drivers who speed to slow down by 5mph to make the road comfortable enough to share with pedestrians and cyclists. As we will reveal in a later post, there is no reason why Kennett cannot begin to pilot this alternative at the same time as they begin construction on the land already acquired. This would allow residents to compare the cost and benefits of each alternative. And if the proposed design is as beautiful as the designers claim, perhaps property owners will be eager to turn over the remaining land needed for the Greenway team's preferred design.

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