Penn State is escalating.

Notices posted by PSU OPP staff at the PSU/Toll Brothers development site on Thursday, July 20.

Kelli Hoover and David Hughes, Nittany Valley Water Coalition representatives, received the following email today from Kurt Kissinger, Associate Vice President for Finance and Business at corporate Penn State.

Kelli and David,

Thank you for taking the time to meet with us before the July 4th holiday to discuss your concerns regarding the Toll Brothers planned residential development on Whitehall Road. I understand that Charima has scheduled a meeting with representatives of Toll Brothers in the next couple of weeks. I look forward to participating in the discussion.

As a follow-up to our discussion regarding the presence of protestors at the site, we appreciate your concern for the health, safety and well-being of all concerned, in addition to the adherence to relevant University policy and local ordinances. As we discussed, the protestors camping at the Whitehall property are in direct violation of University Policy AD 57, which prohibits camping on University property except in those areas designated by the Office of Physical Plant or other administrative unit of the University. Also, the University previously received a determination from Ferguson Township that camping on University property at another location in the township is not permitted.  Accordingly, we kindly ask that camping on Penn State owned land on Whitehall Road cease immediately.

Furthermore, since our meeting we received the attached notification letter from Ferguson Township citing potential violation of the Township’s Sign Ordinance at the site. The University has 30 days to comply with the stated notice. Since the University has not granted its permission for the placing of signs, we kindly ask that you remove the signs immediately.

Finally, and perhaps most importantly, we will be notifying the protestors at the Whitehall Road property that they are trespassing.  The area where the protest is occurring is not open to the public.  The protesters’ presence on the site violates University policy and has not been consented to by Penn State.

Thank you for our cooperation, and I look forward to meeting with you again soon.

Best wishes,

Kurt

Kurt A. Kissinger, MPIA

Associate Vice President for Finance and Business

The Pennsylvania State University/Finance and Business/208 Old Main/University Park, PA 16802

Tel: 814-865-6574/ kak47@psu.edu/www.fandb.psu.edu

Kissinger attached the following notice from Ferguson Township Zoning Administrator Jeffrey Ressler, dated June 28 and stamped received by David Gray, Vice President for Finance and Business, on July 3.

6.28.17 Ferguson Twp Letter re Sign Ordinance Violations

Within a very short time, Penn State Office of Physical Plant employees drove up to the Whitehall Road/Blue Course Drive site and pounded two new notices into the ground.

Photo above.

More context as to why Penn State may be escalating in this way, at this time, to follow.

Also of note, as the above was happening this afternoon, the Penn State Board of Trustees committees were meeting in Harrisburg, and Ferguson Township Supervisor Laura Dininni was in executive session with the rest of the Ferguson Board of Supervisors, who are apparently attempting to remove her from the office to which Ferguson voters elected her, or otherwise discipline her, because her fierce advocacy for her constituents and community water and farmland makes other members of the board uncomfortable.

Posted by KW

Updates – July 19, 2017

Potluck Saturday July 22; upcoming meetings; links to op-eds and letters to the editor

By KW

Occupation Update & Potluck

The occupation is now 6 and a half weeks old, and will celebrate the 7-week mark with a potluck at the site this Saturday, July 22, at 6 p.m. Please come out! Facebook event page.

Forthcoming Meetings

Thanks to the occupation, the many yard signs all over our community, many letters to the editor and other forms of pressure on Penn State, we now have two meetings scheduled with decision makers.

On Tuesday, July 25, Nittany Valley Water Coalition reps are scheduled to meet with Penn State reps to discuss possible alternative sites for the Toll Brothers project, that could become part of a land swap.

And on Wednesday, August 2, NVWC reps are scheduled to meet with Penn State and Toll Brothers reps to continue assessing the possibilities for a land swap.

Op-Eds and Letters to the Editor

There has been a good amount of public discussion in our two main local newspapers – the Centre Daily Times and the Centre County Gazette/StateCollege.com. Below are some of the links:

Expanding the Reach

We are interested in getting the message out to a statewide audience if possible, especially as the PA Supreme Court is considering whether or not to hear the NVWC appeal of the Commonwealth Court decision.

Contact info for newspapers in Harrisburg, Philadelphia and Pittsburgh below – please write letters.

NVWC also has several thousand copies of a small flier to be hung on doorknobs around our community.

Please email nittanyvalleywatercoalition@gmail.com if you can help with that.

Updates

By KW

Nittany Valley Water Coalition representatives continue to work toward setting up a meeting with Penn State executives and Toll Brothers executives, to identify and assess other parcels of Penn State-owned land in the Centre Region for a potential land swap that would meet the community’s interest in protecting the Slab Cabin Run watershed from intensive development while still meeting Penn State’s interest in profitable land sales and Toll Brothers interest in profitable student housing development.

In the last few weeks, several Penn State executives have stopped by the site to talk with occupiers, including Damon Sims, Vice President for Student Affairs; Zach Moore, Vice President for Government and Community Relations; and Steve Maruszewski, Assistant Vice President for Office of Physical Plant.

In other news:

Ferguson Township Board of Supervisors held an executive session on Monday, June 26 to discuss whether the Township should file a formal statement to the PA Supreme Court regarding the plaintiffs’ appeal of the May 2017 Commonwealth Court ruling regarding the planned Toll Brothers/Penn State luxury student housing development near Whitehall Road and Blue Course Drive.

Supervisor Laura Dininni had proposed that the Township urge the Supreme Court to take up the appeal, on the grounds that the conflict between the November 16, 2015 PRD approval by the Township and the Township’s own zoning laws has left Township staff – and municipalities across Pennsylvania – in a legally ambiguous position and weakened agricultural zoning as a land use planning tool.

Although the door to the meeting was closed, I was in the hall outside waiting to see if they would emerge and announce a public meeting in order to hold a vote. The supervisors and staff were speaking loudly because one participant was on speakerphone, so I heard most of the discussion.

Meeting participants included Board Chair Steve Miller, supervisors Laura Dininni and Rita Graef in person, supervisor Peter Buckland by telephone, Township Manager Dave Pribulka and Township Solicitor Joe Green. Supervisor Janet Whitaker was absent.

Pribulka summarized the problem nicely, explaining that the 5.5-acre parcel intended for stormwater detention, under the current legal circumstances, is simultaneously part of the adjacent Planned Resident Development (PRD) zoning, as an “accessory” to the student housing development, and also not part of the PRD, because it’s still zoned Rural Agricultural, although its planned use doesn’t comply with Township laws governing authorized uses of RA land. Township staff are therefore left in limbo if confronted with another land development plan making similar requests for similar land use plan approvals.

Supervisors Dininni and Buckland generally argued in favor of asking the Supreme Court to take up the case to provide clarification.

Chair Miller and Solicitor Green generally argued in favor of doing nothing, on the grounds that the Township “won” at the Commonwealth Court level. Green apparently prepared a recommendation memo to that effect.

Supervisor Graef generally tried to say nothing substantive while still saying words occasionally.

In the end, Buckland rang off before anyone could make a motion, and in the ensuing procedural discussion about whether to hold a vote and if so, whether to open the meeting to the public to witness the vote (in compliance with the PA Sunshine Act), Dininni was told that without decisive supervisor action to reverse Green’s recommendation as written in his memo, the solicitor’s recommendation would simply be implemented without a board vote.

And so it was.

I’ve since heard that about 50 concerned citizens sent emails to the board on this issue, which – if I understand correctly – is more than they’ve had on a single issue in quite awhile.

Through this event, we’ve learned yet another way that some local officials thwart the public interest in accountable, transparent, responsive governance – in this case, by presenting a solicitor’s memo as a default course of action, requiring a majority vote to override.

As always, this is useful information.

There is a large knowledge gap between what insiders know about how to rig procedures to obtain pre-selected outcomes, and what concerned citizens know about that topic, but concerned citizens are closing the gap fast.

Potluck party at the encampment!

Potluck party at the protest encampment of the Toll Brothers development
Friday, June 30 starting at 6:30 pm.

To mark the one month anniversary of the occupation of the Toll Brothers proposed development on the Slab Cabin Run watershed, we will host a potluck at the site. Join us and bring a dish to share, your own plates & cutlery, and a chair to sit on. There will be live music and great people to meet. There are several tents if you want to camp out overnight. Please park at High Point Park across the street or in the church parking lot next door. Bring your family and friends.

Action Items

From Kelli Hoover

Contacting Ferguson Township Board of Supervisors RePA Supreme Court Review of Land Use Appeal Case

We have a chance to create the circumstances that would strongly encourage the PA Supreme Court to take up our case against the Toll Brothers development, but we need your help to do it.

On Monday evening the Ferguson Township Supervisors are meeting to decide how to respond to the filing of our appeal against the Toll Brothers development. Two of the supervisors are willing to propose that the Board file a brief to ask the court to hear our appeal. We need to convince one more supervisor at least to join them.

To do that, please send an email to all five supervisors and paraphrase what’s written below asking them all to request that the PA Supreme Court hear our case.

Having the municipal officials ask for this will go a long way to convincing the Supreme Court to take the case. It doesn’t matter whether you live in Ferguson or not, and you can say that if you want, because this decision affects everyone in the region.

PLEASE DO THIS BY MONDAY MORNING AT THE LATEST.

Email addresses for Board of Supervisors

SAMPLE TEXT

“Dear Ferguson Township Supervisors:

As you know, the legality of the approval of the Toll Brothers development has been appealed to the PA Supreme Court. Because the Commonwealth Court’s decision did not directly address the issues related to the Township’s zoning ordinances in conjunction with PRD approvals, considerable confusion has been created about how to interpret what the Township can and cannot do when considering these kinds of development approvals in the future.

I am writing to respectfully request that the Board file a response to the Supreme Court appeal asking the Court to hear the issue. The Township has been put into a position of potential liability by the confusion created by this situation, which can only be clarified by a hearing in the PA Supreme Court. This is the right thing to do for the Township residents and for the Board’s ability to make clear decisions on zoning/PRD approvals in the future.

Thank you.

Your name

Where you live (township)”

Contacting PSU Board of Trustees to Urge Land Swap:

Below is a letter from David Hughes of the Nittany Valey Water Coalition to President Barron sent on Thursday, June 22 to give Barron information that the science and the risks to the wells from the Toll Brothers development are real and why.

Penn State has been claiming that there are no risks to our water, and that we have no science to back up our claims that there are indeed potential risks.

Please consider writing to President Barron and the Board of Trustees to voice your concerns to ask them to do a land swap with Toll Brothers – sell them land that doesn’t threaten our water supply.

Addresses for Barron and Trustees (Jay Paterno will be replacing Albert Lord in July):

  • Abraham Harpster – amh102@psu.edu
  • Albert Lord – all300@psu.edu
  • Alex Hartzler – jah107@psu.edu
  • Alice Pope – awp130@psu.edu
  • Allison Goldstein – asg206@psu.edu
  • Anthony Lubrano – apl12@psu.edu
  • Barbara Doran – bld221@psu.edu
  • Betsy Huber – beh17@psu.edu
  • Chris Hoffman – crh24@psu.edu
  • Cynthia Dunn – cad46@psu.edu
  • Daniel Mead – dsm232@psu.edu
  • David Han – dch24@psu.edu
  • David Kleppinger – dmk93@psu.edu
  • Donald Cotner – dgc14@psu.edu
  • Elliott Weinstein – eww127@psu.edu
  • Eric Barron – president@psu.edu Admin
  • Ira Lubert – iml2@psu.edu Trustee
  • Julia Potts – jap58@psu.edu Trustee
  • Kathleen Casey – klc341@psu.edu Trustee
  • Kay Salvino – kfs13@psu.edu Trustee
  • Keith Masser – kem375@psu.edu Trustee
  • Luke Metaxas – lrm26@psu.edu Trustee
  • Mark Dambley – mhd15@psu.edu
  • Mary Lee Schneider – mls85@psu.edu
  • Matthew Schuyler – mws18@psu.edu
  • Pedro Rivera – par119@psu.edu
  • Richard Dandrea – rkd135@psu.edu
  • Robert Capretto – roc5064@psu.edu
  • Robert Fenza – ref18@psu.edu
  • Robert Jubelirer – rcj10@psu.edu
  • Robert Tribeck – rjt107@psu.edu
  • Russell Redding – rcr132@psu.edu
  • Ryan McCombie – rjm40@psu.edu
  • Ted Brown – ebb136@psu.edu
  • Thomas Wolf – tww10@psu.edu
  • Valerie Detwiler – vls153@psu.edu
  • Walter Rakowich – wcr121@psu.edu
  • William Oldsey – wxo111@psu.edu
  • William Shipley – wss129@psu.edu

When you send your message, please also send a copy to nittanyvalleywater@gmail.com, so the coalition can keep track of how many letters get sent.

 

Update from the Occupation – June 22

Occupation Day 20

I wasn’t on site until about 11 pm today when I just popped in to say goodnight.

Dave Stone told me he talked to a gent from DEP today who said he was surprised that he didn’t see more public outcry when he first saw the permit application. I’m wondering why we couldn’t trust our elected officials to do the right thing. Isn’t that what they’re elected to do?

Although I wasn’t physically present at the encampment today I was there in spirit. As I know many of you were.

In body, I was getting back in touch with my Pisces nature and spent quite some time removing plastic trash from Roaring Run. I sat on a rock in the stream meditating on how lucky we are here and what a bad track record the human race has with keeping water clean and available for all beings.

My meditation was inspired; I had a first today – I saw a bobcat up close, running right to Roaring Run. This place where our water flows from houses and protects many living beings. We are ALL in this together.

I’m wondering if someone would take over the daily encampment updates as this will be my last one. I’ve enjoyed it, especially your replies❤️, but I’ll be spending less time on site as I’ve got to turn more intently to politics.

I’m hoping to get ahead of some threats and to help provide some positive opportunities long term.

In solidarity,

Laura

Update from the Occupation – June 21, 2017

Occupation Day 19

I spent about ten hours at the site today but I’m too beat to write about it! Sorry!

Please refer to team members for questions about specific projects.

Thanks to the fact sheet team for getting the new revised edition up and running.

In solidarity,

Laura

TEAMS:

  • HANDOUT/edits: Art, Andy, Kelli
  • TALKING POINTS: Kelli, Amanda, Kim
  • CDT AD: Kelli
  • DEP PERMIT REVOCATION: Sara, Andy, Dave S., Katherine, Mark H.
  • LETTER TO PSU ALUM DEP ADMIN HEADS: Laura, integrating David H. BOT letter language.
  • SITE AND SUPPLY: Janet E., Dave S., Kelli
  • Letters to the Editor: Erin, Irmi, Don, Bernie, Ingrid
  • BIKE TOUR: VOLUNTEER FOUND!!! Kim thinks she may have found a point to lead the effort! Kim will liaison.

ACTION: PLEASE SIGN UP FOR SHIFTS ON GOOGLE CALENDAR!

(Please let Joe (jpcusumano@gmail.com) know if you would like to be added to the calendar to sign up to spend time at the site)

ACTION: I created a FB check in. It’s called Nittany Valley Water Coalition Encampment. Please check in at the site regularly. Both virtually and in real life!!

Wish List:

  • Dry erase board

Reminders….

Please use your contacts to reach out to property owners in very visible locations to display No Toll signs.

If you haven’t yet, please sign the new petition, Demand that Penn State Acts as a Responsible Steward to Our Community’s Water

Pass it on please!

Staying Informed and In Touch

Like and Follow us on Facebook:

Nittany Valley Water Coalition Website

Bailiwick News – Compiled 10-part series.

David Hughes Letter to Eric Barron – June 22, 2017

Dear Eric,

I hope you are well. As you know I have taken a keen interest in the Toll Brothers site on Whitehall Road. I addressed the Board on this issue on May 6, 2016 during public hour (1).

I am writing to you today and cc’ing the Board and a number of others in leadership whom I have talked to in the last three weeks so that I might stress that going ahead with this development places the University at risk.  I have been examining the available science (discussed below) and it all points to a fragile ecological area with connections to the well water.

I presented my assessment of the studies that have been done to the State College Borough Water Authority Board (SCBWA) last Thursday (6/15/17) and simply raised a number of concerns I had. Based on those concerns the SCBWA added new items to their Board meeting and agreed to look into conducting new studies on the Toll Brothers development site. In particular, a feasibility evaluation for doing a Dye Tracer Study was proposed and approved that would shed light on the statement by their current board member, and Penn State Extension Officer, Dave Yoxtheimer.

“The results of the dye tracing [on Slab Cabin run] provided independent evidence of the importance of subsurface flows in the transmission of water beneath the surface channel of Slab Cabin Run. This information lead to the conclusion that, in practical effect, there are two Slab Cabin Runs, one in the visible surface channel and another hidden from view in the shallow subsurface“ (2).

The movement by SCWBA is a clear indicator that the available science does highlight potential issues of risk with situating this large development so close to the well heads. This important move by SCWBA was noted at the Ferguson Township Board of Supervisors regular meeting on 6/19/17.

Let me repeat briefly the evidence I have reviewed that suggests future negative impacts on the two major wells. This is not my area of expertise so it is entirely possible I am mistaken so I have limited myself to the presentation of facts and direct quotes from the > 1,000 pages of reports and appendices. This is just an informational exchange to raise my concerns with you and the Board about possible risk.

The Toll Brothers site is in Zone 2 of two wells (Thomas and Harter Wellfields). These two wellfields provide >65% of the water for State College each day. The aforementioned tracer studies (November 2005 and December 2006, Ref 3) showed that a tracer dye (Sulphorhodamine B) released into Slab Cabin run upstream of well 11 (Thomas Wellfield) and 25  (Harter Wellfield) entered the wells in 5 days. Concentrations were different with higher levels in well 25 compared to Well 11 (82 ppb/day vs 1 ppb/day), implying different degrees of connection. Another dye (Fluorescein) released in a dry tributary (Musser Gap) feeding into Slab Cabin showed the dye arrived in Wells 11 and 25 between days 20 and 28 at similar concentrations (0.76 ppb/day and 0.56 ppb/day). Interestingly the dye was detected in Slab Cabin Run after 13 days at a concentration of 1 ppb/day. This according to the author of the report (Dave Yoxtheimer, Ref  2, Ref 3) highlights a complex subsurface flow captured in the above quote.

As a geologist you know that the reason for such interconnectedness is the karst and epikarst nature of the dolomite bedrock in our valley. Although this topography is well known, a repeated counter argument I have heard was that it is not a cause for concern as there is plenty of soil that would filter out any contaminants long before it reaches the wells.

To assess this, CMT Labs did the infiltration studies on the Toll Brothers site (Ref 4, Ref 5). These are discussed in the June 5, 2015 Final Stormwater Report (6). The site is dolomite rock with very shallow Hagerstown and Opequon soils. The 5.5 acres proposed to house the stormwater detention basin is on top of an exciting swale over a fracture zone. The area has extensive sinkholes. In preparing two reports on the infiltration studies CMT Labs had to do conventional and non-conventional infiltration tests because the soil was so shallow. It was necessary to also explore the capacity of the bedrock, which is very close to the surface and consists of fully exposed rock in some areas. The subsoils have “excellent structure/macropore abundance” but their “close proximity..to permeable bedrock” (Ref 4, p. 982) means the soil may not function as the filters such a site requires. That is, the stormwater may pass through the shallow soils into the sub-surface. As outlined above, the existance of a subsurface Slab Cabin Run connected to the wells means any pollutants from the site would also travel into the wells.

The two CMT reports are not confident in their assessment of the safety of this site and while they did not undertake a formal risk analysis, it is interesting how the report in 2013 (Ref 4) shifted from a safety recommendation of 2.0-2.5 to 3.0 in 2014 (Ref 5)

The reports raised a red flag about compaction. As you know (but perhaps the others cc’d here do not) the ability of soil to filter pollutants rests on the amount of natural holes it contains.  Applying pressure to soil results in compaction which reduces its ability to act as a filter. In the first report, CMT Labs advocated that heavy equipment not be used during and after construction of the storm water capture basin. “All heavy equipment should be prohibited from operating or travelling over the infiltration pit” (Ref 4, p. 983)

Both reports (Ref 4, p. 984, Ref 5, p. 1041) expressed concern regarding the amount of mowing because of the compaction that could occur. Correct planting is needed but the timing of that and the first water to pond in the basin was a concern raised in the second report since there could be a “development of a restrictive layer” reducing infiltration capacity (Ref 5, p. 1041).

Taken together the soil analysis highlights a narrow layer, close to the bedrock that is liable to lose its filtration capacity, implying it is perhaps not the ideal location for a basin.

Soil is a natural filter and we can certainly use artificial filters if the soil is not sufficient. Engineering solutions such as a separation filtration are possible but the issue is that these “are prone to clogging over time, and may require long term maintenance.  These issues should be discussed with appropriate municipal officials” (Ref 4, p. 982).

I have seen no plans for such maintenance or had evidence that these discussions with Ferguson Township occurred.

So far I have discussed the highly connected nature of the water and the insecurity expressed on the role that the shallow soils at the site can play in filtering the pollutants.

A major issue of course is that a sinkhole opens.

The CMT report states that the karst rock and its permeable bedrock mean “significant subsidence and sinkhole activity could occur” (Ref 4, p. 982).

Farming is the historic land use and it

“does not significantly increase the potential for sinkholes to form on this tract. The significant grading, landscape alteration, increase in impervious surfaces, and channeling of stormwater involved with this project [Cottages] does increase the risk of sinkhole formation and therefore does increase the potential to degrade ground water quality.October 31, 2014 letter from Aqualith Technologies, LLC, (Author: David Yoxtheimer, now Penn State Extension).

A sinkhole represents a direct conduit in to the aquifer which in turn could have direct adverse impacts on regional drinking water quality if significant volumes of surface runoff are channeled into a sinkhole. Based on the recent site walkover with the project engineers on October 23, 2014, and the site inspection by PA-DEP personnel (Kipp Starks, December 3, 2013) there are sinkholes in proximity to the project and therefore they do represent a risk. (October 31, 2014 letter from Aqualith Technologies, LLC, (Author: David Yoxtheimer, now Penn State Extension).

The 2014 CMT Lab report states:

In terms of risk management, we do not believe there is an effective method for elimination of sinkholes in karst infiltration areas…and the risk is inherent” (Ref 5, p. 1034)

With such a large impervious surface planned at this site there exists the potential for marked changes in the pH to more acidic water in the runoff, accelerating erosion of the dolomite rock leading to sinkholes. I am certainly happy to provide references to other case studies where sinkholes formed under basins.

I am neither a hydrogeologist nor a geologist. I am an ecologist. But my reading of the available reports leads me to conclude that we do not have sufficient evidence to state that the placement of this development so close to the major wells is not without risk. The question for us, Penn State, is how much risk are we willing to accept?

My interest is protecting the mission of our University and the noble aims laid out in our strategic plan to be good stewards.

You may have heard that the Supreme Court of PA recently established (June 20) a broad interpretation of the Environmental Rights Amendment (Article 1, section 27) to the State Constitution, cementing in place the Commonwealth’s role as trustees for public natural resources. The Constitutional amendment states:

Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people. The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.

This Supreme Court of PA ruling sets aside 40 years of more restrictive interpretations. This is important here because the water in these wells is a common resource. We, as a Land Grant, have embraced the Environmental Rights Amendment, which we quote in our strategic plan.

I would also draw your attention the Community Bill of Rights adopted by Ferguson Township which states:

“Right to Pure Water. All residents, natural communities and ecosystems in Ferguson Township possess a fundamental and inalienable right to sustainably access, use, consume, and preserve water drawn from natural water cycles that provide pure water necessary to sustain life within the Township.” Section 1.05

Finally, were Toll Brothers plan to be put forward today it would not be compliant with the current stormwater management plan. I have heard the argument that their plan went above and beyond what was required and thus is safe.  I have seen no evidence of this and would point out that if they submitted the same plan today it would not be compliant with regulations in place to protect water.

I do not know if we (Penn State) can reasonably state that in selling this land we have no responsibility should the wells get contaminated. But perhaps it is best to observe the precautionary principle and find an alternative solution.

Last Saturday I drove around for 3 hours with a local developer and it is clear there are many sites near the University which we could sell to Toll Brothers. I am happy to provide maps highlighting where these are.

In conclusion, it is my view that proceeding with the sale to Toll Brothers represents a risk to the University. This is certainly in terms of our reputation in this community but may be a broader risk as we are the State’s Land Grant and have responsibility to be stewards of our natural resources.

I am happy to serve you or the Board in any way I can as we navigate this issue.

Sincerely

David Hughes