Chilled!

I was contacted by a Berks County farmer in February who had just received a legal notice that he, along with 79 other people who had attended a public meeting in Lower Heidelberg Township, Berks County, were being sued.  The only thing these people had in common was the fact that they had exercised their constitutional right to assemble as a group to participate in their local government’s process.

Needless to say, this farmer was quite upset.  It was going to require him and everyone else who had been named as nominal defendants in this lawsuit to hire personal attorneys to clear their names.  In the mean time, the fact that he had been served with papers and was being sued would impact him in other ways besides aggravation.  His personal credit would be marred until this matter could be resolved, his ability to get a loan threatened.  This ridiculous action by attorneys hired by a potential land developer had already cost him precious time, taking him away from an already work-filled day at his own farm just because he decided to give up an evening and attend a township meeting.

In shocked disbelief at what I was hearing, I kept trying to listen for a clue that would explain why this sad day for democracy was unfolding.  There had to be some legitimate reason why 80 upstanding citizens were now a target of a law suit.  Even after reviewing the legal paperwork the farmer provided, I couldn’t fathom why they were being sued.  It seems to just boil down to the fact that a land developer was not getting the answers he wants from the township to wink at a long-standing requirement that a certain farm stay in agriculture.

Many years ago, a brick manufacturer had purchased this farm in order to “mine” clay material for brick production.  After just a few loads of clay were removed, the company decided the quality of the materials was not what they expected and abandoned the site.  But, in order to have permission from the township to remove the soil in the first place, the company had agreed to return the land to its original use ---agriculture.  For a while, the farm was leased out, and later it was sold to the housing developer.  Despite appeals at all levels of the legal system, the township’s first decision to require this farm to be kept in agriculture was sustained.  The farm is not an isolated parcel, and is within close proximity of several preserved farms and others that are in the township’s agricultural security area.

This latest attack by attorneys on interested citizens appears to be a “last straw” desperate attempt to break the will power of the community that wants to protect its agricultural zoning requirements and previous land use decisions.  Angering 80 people might make them contact their local officials and get them to reverse their decisions of the past.  The developer also decided to try the tack of claiming the local planning commission members acted illegally because they had never been officially sworn in and some forgot to submit annual paperwork to the state Ethics Commission.  The only punishment for not filing these forms is a letter asking the civic volunteers to get it done.

The irony is that some of the 80 people being sued were actually attorneys who were attending the township meeting to represent clients in matters totally segregated from this land use appeal.  It didn’t take them long to counter this legal insult by filing their own legal papers against the developer, et.al.  Unfortunately, the regular township residents who were interested in exercising their civic duty and stay involved in their local government’s actions were now part of a legal battle that would cost them time and money.

While all this may seem bizarre, it was all too true for the farmers and other defendants who had been named.  My reaction that this was ridiculous did not erase the reality that something had to be done.  If this type of litigation would succeed, imagine the long term effect this would have on people’s willingness to participate in government.  It is hard enough to get people to spend an evening at a public meeting at a township or school district.  If just showing up and signing an attendance sheet could subject people to legal action, I doubt that too many brave souls would show up to listen or comment.  This would have an absolute chilling effect on citizen involvement in government, and would rip away constitutional rights.

In my role as Berks County’s agricultural coordinator, I decided to bring this to the attention of our County Commissioners.  After a meeting with some of the impacted farmers, the Commissioner Chairman, Mark Scott, took the matter before the Board for action.  They voted to allocate funds from a restricted account of non-tax payer dollars --- accumulated environmental fines paid by a landfill company --- to defend the 80 citizens.  They hired an attorney from outside of the county to handle the case.  This lifted a huge burden off the backs of the private citizens, and diffused the negative reaction the developer was hoping for.

The legal battle will continue for months and perhaps years ahead.  Thousands of dollars will be spent to ensure that a township’s decision to protect a farm from development is upheld.  Just as important, this case will defend the rights of citizens to express their opinions to elected officials and government without fear of litigation when they make the right choice to get involved in the public process.

To read more about this, go to the Website for the County of Berks, www.countyofberks.com and click on Lower Heidelberg case. 

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