Attorney: Concord shows bias; wants recusal

Posted by Rich Schwartzman on January 31, 2018

A hearing for a land development application in Concord Township stalled at the starting gate Tuesday when the applicant's attorney called for Township Council to recuse itself for bias. Attorney Marc Kaplin also asked the council to appoint an independent hearing officer.

After a brief executive session, Council put the hearing on hold for 20 days to decide on the requests. Feb. 27 was already scheduled for the second night of testimony in the matter.

The applicant, Concord Ventures, wants to build 29 townhouses in six buildings and 166 apartment units in three five-story buildings on 49 acres of a 64-acre property west of Route 202 at Watkin Avenue near the Delaware state line — part of the Woodlawn Trustees property. Concord Ventures is the equity owner.

Kaplin, representing Concord Ventures, said Concord Township Council President Dominic Pileggi, township engineer Nate Cline, solicitor Hugh Donaghue and former Township Manager Brenda Lamanna had engaged in communication with an attorney representing people who object to the development but without his client's knowledge.

"This shows bias against my client," Kaplin said. "It violated due process."

That other attorney is Marc Jonas who, on Jan. 16, represented Lori Kidd during a Planning Commission meeting on the Concord Ventures application. Kidd opposes the application, and the commission voted to recommend that council deny the plan.

Kaplin said during council's Jan. 30 meeting that before Jan. 16 the township never informed him that there were objectors to the application. He said he was also unaware of a series of phone calls and emails between Jonas and township personnel regarding the proposed development.

"Based on invoices sent to Concord Ventures by the township, representatives of the township have had a number of ex parte and undisclosed substantive telephone conversations and written communications with Jonas to discuss Concord Ventures' application," Kaplin said reading from a prepared seven-page petition.

In the petition, he cited 10 incidents between July 5, 2017, and Nov. 26, 2017, in which the undisclosed communications took place. Kaplin specifically mentioned a 2.5-hour conference call between Pileggi, Lamanna, Donaghue and Jonas on July 5.

"The township representatives' repeated undisclosed telephone conversations and written communications with Jonas concerning the CV application create, at a minimum, the appearance of collusion with the objector to oppose CV's application," Kaplin said.

Regarding the alleged 2.5-hour ex parte conference call last July, Pileggi said he did not have any phone call with Jonas on that date and Donaghue said that, while he might have spoken with the others mentioned that day, there was no such 2.5-hour conference call.

Kaplin also said the township's denial of a reverse subdivision request of the property in 2015 for reasons he called "irrelevant and improper" — and later overturned on appeal — showed council has a "predisposition and bias" against his client's application.

He then cited a handful of court cases in which judges opined the need for unbiased tribunals, even the need to avoid the appearance of bias. Regarding several of the cases, Kaplin said: "The mere potential for bias, or the appearance of non-objectivity, is sufficient to constitute a violation of due process."

In urging recusal, he said "An administrative tribunal functions as a judge and is held to the same standards as a judge with regard to recusal," and under Pennsylvania law, "any circumstances or factors that objectively lead to the conclusion that the judge's impartiality might reasonably be questioned justify recusal."

He concluded saying: "Based on the foregoing, CV requests that all Township Council members and the township solicitor recuse themselves from participating in the hearing or adjudication of CV's application and instead, appoint an independent hearing officer to preside over and adjudicate CV's application."

For his part, Jonas said he was fine with a continuance of the hearing to allow time to consider the petition of recusal and to research the law. But he also called Kaplin's implication of collusion "groundless."

He tried contacting Kaplin, Jonas said, and it was Kaplin who denied communication.

Kaplin’s claims, Jonas said are "factually inaccurate and nothing more than a stunt."

About Rich Schwartzman

Rich Schwartzman has been reporting on events in the greater Chadds Ford area since September 2001 when he became the founding editor of The Chadds Ford Post. In April 2009 he became managing editor of ChaddsFordLive. He is also an award-winning photographer.