Red Lion facing trespass suit amid intercouncil conflicts
Neighbor complaints in Pennsylvania are typically handled by the municipal government — but what if one of the neighbors is the municipal government?
A couple in Red Lion, facing this situation, turned to the courts by filing and recently winning a lawsuit alleging the borough was trespassing on their property.
The suit, which could end up costing the borough thousands of dollars, is one of three involving the same couple and the borough — litigation that highlights conflicts on the council that led to a contentious primary election campaign.
Scott Thompson and his wife, Sandra Graham, own a handful of Red Lion properties, including the former Zarfos furniture store, under their joint business, ArthurLee LLC.
In late 2014, the borough purchased property adjacent to the former Zarfos store on West Broadway, with plans to raze the building and construct a public parking lot.
Council member Danielle Kabacinski said the No. 1 complaint of businesses in the borough is a lack of available parking, particularly during snow emergencies.
According to meeting minutes, the lot created about 28 additional parking spaces, and there are plans to set up a kiosk charging 50 cents per hour.
Trespass: Thompson said he had no issue with the borough's plans until he noticed dirt piling up nearly 5 feet high against the side of his building.
Worried the borough was going build the parking lot against their building — which has happened — Thompson and Graham met with borough officials in February 2016 in hopes of seeing the plans and receiving assurance that their wall could handle the added pressure.
Minutes from the borough council meeting in April 2016 indicate the borough's engineer, Jeff Shue, was directed to show Thompson plans for the lot before the council made any final decisions.
Thompson said, however, he received no such plans and construction resumed. The couple filed their lawsuit as ArthurLee in late June 2016, according to documents filed in the York County Prothonotary's Office.
Shue, director of municipal services for C.S. Davidson, said one of his team's structural engineers toured the former Zarfos store with Thompson and sent the couple a letter explaining that he had no concerns about the load of the parking lot against their building.
Thompson said he didn't receive that letter until after he filed the lawsuit, and it doesn't offer any type of certification that would remove his financial liability if the pressure does impact his building.
On May 4, York County Court of Common Pleas Judge Christopher Menges ruled the borough is trespassing on ArthurLee's property.
The borough tried to argue that its actions weren't causing harm to the couple's building, but Menges pointed out in his Memorandum for Judgement that, under state law, a subject is liable to another for trespass regardless of whether or not the trespass causes harm.
Thompson and Graham have until Monday to file a motion to schedule a relief hearing, according to court documents, and the borough could file an appeal by that same day, according to ArthurLee's attorney, Charles Rausch.
Rausch said his clients are open to a few options, but if the borough won't negotiate, they want the parking lot off their property, meaning the borough would have to find a way to reconstruct it.
Borough officials were advised by their solicitor, Michael Craley, not to comment on pending litigation.
Borough manager Dianne Price wrote in an email that she could not respond officially until the council takes action at its next meeting, scheduled for 7 p.m. June 12.
Council President Kelly Henshaw and Vice President Tony Musso did not respond to emails seeking comment.
Over budget: Council member Dennis Klinedinst, who has been on the council nine years, said he voted against the parking lot because he knew it would cost more than what Price originally said it would.
Meeting minutes show Klinedinst originally voted in favor of buying the property for a parking lot, but he was the lone dissenter among seven council members in October 2014 when he began questioning costs after the initial $55,000 purchase of the property.
Klinedinst said he recalled the estimated figure to be about $100,000, while Kabacinski said she recalled an estimate near $167,000. Meeting minutes do not specify a cost estimate beyond purchasing the property and bids received for demolition. Both agreed the actual cost is now north of $300,000.
"Things happen during construction," Kabacinski said, including, in this case, an asbestos issue in the now-razed building. "It's not ideal, but I still think the benefit outweighs the cost."
Kabacinski said she doesn't know why Thompson and Graham are suing the borough, but she thinks "it's a lot of sour grapes" because they tried to buy the property before the borough finalized its deal.
Thompson said they had initially shown interest in buying the property, but they backed away when they learned the borough was interested.
Other litigation: One of ArthurLee's other properties is central to another pair of lawsuits with the borough.
The Red Lion Borough Zoning Hearing Board granted the company a special exception during its meeting May 16, 2016, to allow for a used car lot on its property at 86 N. Main St.
Two months later, the borough filed an appeal against the zoning hearing board because it noted a borough ordinance requires a minimum lot width of 80 feet for a used car lot.
One lawsuit, brought by ArthurLee, is over a 10-foot alley known as Hess Lane that the borough believes is public. Thompson said that alley has been part of the deed to the property dating back to 1898.
If the alley is included in ArthurLee's property, as the zoning hearing board had considered, the lot is 87 feet wide. Without it, Thompson and Graham are just shy of the required minimum width, according to borough ordinance.
The other lawsuit, brought by the borough, focuses on whether the zoning hearing board even considered the width in granting the special exception. Rausch said the borough's appeal can't be made based on a factor not considered in granting the exception, but the borough argued that ArthurLee was required to provide proof its lot was wide enough.
York County Court of Common Pleas Judge Michael Flannelly agreed with Rausch in issuing his order against the borough Dec. 14.
Council conflicts: The council unanimously voted to appeal that decision to the Commonwealth Court during its January 2017 meeting, according to council minutes.
"It's kind of our fault for not knowing," Klinedinst said, pointing out the zoning hearing board's error in judgment.
Graham said the timing of the borough's fight against the special exception made her feel as if it was retaliation for the trespass suit, but she admitted she had no proof.
"We just feel we're not being treated equally," she said.
Klinedinst said he wants to make sure everybody is treated fairly, and that includes within borough council.
Klinedinst and fellow council member Nevin "Butch" Horne said Price was not keeping them informed about the ArthurLee lawsuit, and this is part of a long pattern of information being withheld from them by their borough manager.
Horne said the other five council members have their own clique, and they tend to just follow Price's recommendations. Meeting minutes show numerous instances since Horne joined the council in 2016 of 5-2 votes, with Horne and Klinedinst as dissenters.
Price said she works for the entire council as a group, and she has provided information to Horne and Klinedinst whenever they've asked for it.
Seats open: Klinedinst and Horne were both elected to four-year terms in 2015, but four council positions and an opening for mayor are up for election in Red Lion this year.
Incumbents Musso, Kabacinski and Cynthia Barley campaigned as a team under a slogan "Uniting Red Lion" with Christopher Minnich and mayoral candidate Walter Hughes, a former council member.
Klinedinst and Horne aided five challengers, under a slogan "Council with a Vision," that included Horne's wife, Kathy Horne, as a mayoral candidate. Thompson helped fund the group and prominently displayed their campaign sign in the window of the former Zarfos building.
All 10 candidates ran on the Republican ticket, setting up a crowded primary ballot, but the challenging group was only able to advance one of its candidates to the municipal ballot in November.
Kabacinski, the lone candidate from her group to finish below the top four, will still appear on the November ballot because she received enough write-in votes on the Democratic side.
Kabacinski's home is for sale and she said she might be moving out of Red Lion, but she decided to run in case her home doesn't sell or she ends up staying in the borough.
Police and slander: Kabacinski said she suspects the tension between Klinedinst, Horne and the other council members stems from the council's 2014 decision to leave York Area Regional Police in favor of relying solely on state police coverage.
Kabacinski is married to a state police trooper, but she said the move didn't earn her husband any more money, and she abstained from the vote. She pointed out that Horne's automobile body shop has a contract with York Area Regional.
Horne said the police department does great work, but the borough can't afford to bring them back.
Horne and Kabacinski are at particular odds because Kabacinski recently filed a slander suit against Horne's wife.
The slander suit stems from when Kathy Horne allegedly reported a rumor to a state police lieutenant that Kabacinski had broken into the borough's recreation building.
Kabacinski said she has a key to the building, and no charges were ever filed, but she decided to file the slander suit because she felt Kathy Horne's actions were malicious.
Nevin Horne said he just ignores Kabacinski because "I'm a grown adult" and "she has issues."